Herefordshire Council (21 011 881)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 10 Dec 2021
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about the Council’s failure to carry out repairs to the road behind his property. This is because it would be reasonable for Mr X to take the matter to court.
The complaint
- The complainant, Mr X, complains the Council has failed to carry out repairs to the road behind his house, which he says causes noise to his property and those of his neighbours.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
- Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
- Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
- We cannot interpret the law to decide whether the Council has fulfilled its duty; this is a matter for the courts and Section 56 of the Highways Act 1980 provides an alternative remedy for the issue.
- If Mr X believes the Council has failed to meet its obligations under the Highways Act 1980 he may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs.
- There is no separate, objective or defined standard against which we could judge the Council’s actions on an administrative basis and only the courts may decide whether the Council has fulfilled its statutory obligations. So if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
Final decision
- We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman