Summary: We found fault on Mr J’s complaint about the Council failing to investigate reports of water ponding on the road outside his home following road works. It failed to explore this when he complained. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains about:
1. the Council’s failure to exert any form of control or monitoring of the disruption caused from nearby roadworks which have been ongoing since 2021; and
2. the new road surface not being fit for purpose in parts, with damage to the existing road and verges.
2. As a result, he suffered disruption, is concerned vibrations from the pipes might damage his home, and experienced a great deal of stress and anxiety.

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What I have and have not investigated

3. I have not investigated any of the following complaints Mr J may have:

• Claims of damage to property: This would be a matter for the courts to decide not the Ombudsman.
• Actions of the developer or its subcontractor: This is because our jurisdiction only covers local authorities.
• Speeding enforcement: This is because this is the responsibility of the police.

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The Ombudsman’s role and powers

4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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Highway law

6. Any person or organisation who wishes to carry out works on a highway, will need to apply for a street works licence. (section 50 New Roads and Street Works Act 1991)
7. A section 278 of the Highways Act 1980 agreement can be used to licence a developer to carry out improvement works on a public highway which are generally necessary where planning consent is granted for a development. Under this agreement, developers enter into a legal agreement with a council to make alterations or improvements to a public highway.

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How I considered this complaint

8. I considered all the information Mr J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

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What I found

9. Mr J lives on a road which has been subject to ongoing roadworks since 2021. He is unhappy about the time taken to complete the works which he argues was mismanaged from the start. He has concerns about the condition of the road, verges, the speed of vehicles, and vibrations from passing traffic which he claims is damaging his house. In addition, his quality of life is affected by noise from lorries, particularly Council waste lorries, causing vibrations from 6am each week day. In addition, he is unhappy with the inconvenience the works caused. He is also concerned about the poor drainage on the road itself and not always being able to access his home by car.
10. The Council explained:

• the work is carried out by contractors on behalf of a developer of a nearby housing estate. It is not, therefore, in control of the works.
• its network management team operates a permit scheme for the whole borough. This means all works to roads need booking. It carefully considers details of road classification, local amenities, and levels of traffic flow to co-ordinate and avoid them clashing. It regularly inspects works to ensure they meet national regulations.
• as the local highway authority, it must ensure all roads on the adopted highway remain in a safe condition for all users. Officers regularly check roads to identify and repair safety hazards. There is nothing in its Code of Practice for Highways Inspections which deals with identifying noise and vibration. These are usually the consequence of other defects and vibration does not necessarily mean there is a problem with construction. The road is inspected three times a year, the last time in November 2022. This showed no actionable problems with gullies.
• access to properties should always be granted where safe to do so.
• the sewer for the previous development was installed incorrectly by the contractor. This meant the water company would not take ownership of it until it was done properly. The new development needed a new sewer alongside the surface water drain.
• when all work is complete, it will check gullies, the condition of grass verges, and drainage problems. Any problems will be for the contractor to resolve. Officers visited the site nine times in 2021 and nine times in 2022 up to August. It has a responsibility to ensure works on its road network are done safely. Completed works will be inspected before it adopts them. This will depend on various utility providers checking the works on the sewers, gas, and electric installations.
• it tries to minimise disruption from vehicle movements from its waste collection, but they do need to travel to all areas of its borough. Drivers were asked to ensure vehicle movements along this road is minimal for three days of the week when they use it to travel north away from his home.
• it has plans to move the 30mph signs because of the altered layout of the road.
• there is evidence of water pooling outside Mr J’s house as far back as 2009. Gullies are cleaned every two years and were last done in February 2022 which found no problems. It has no reports of ponding or flooding from Mr J until he made his stage 1 complaint. Nor has it received reports from other residents. It accepted, as it had no evidence of ponding, it should have asked Mr J for photographs or to report it as it happens to help officers understand the extent of any problem. It also accepted it could have asked him for this information earlier in the complaints process.
• reports of banging and vibration were initially raised by Mr J in 2019 and 2020 before the works started. He thought this was due to waste lorries passing over an uneven road surface. It found no actionable defects. A loose manhole cover was found near to Mr J’s property which was repaired in 2022. It has no record showing when this was done. It will now arrange for an officer to visit Mr J to clarify the problem.
• in the planning application for the housing development, there was mention of spending £43,000 for traffic/speed reduction measures. During its assessment, the Council found no speeding issues. Two uncontrolled crossings were built at two junctions, one with a refuge island. The Council is currently carrying out public consultation about a zebra crossing nearby.

11. The Council recently confirmed works are now complete. It is carrying out inspections to ensure they are of a satisfactory standard.
12. The Council confirmed it only received one complaint about waste lorries speeding which was in 2020. The response to that complainant advised it was putting large numbers on vehicles to make it easier for the public to report to the contractor. It has no records from the police about these vehicles speeding.

My findings

Complaint A:

Control and monitoring

13. I found no fault on this complaint, particularly the time taken to complete the works. This is because the works were not done by the Council but by the developer’s contractors. The Council is not, therefore, responsible for the time taken to complete the necessary works.

Complaint B:

Condition of road

14. I found no fault on this complaint. This is because I have seen the Council’s records for its inspections of the highway which cover a period from 2021 to 2023. Out of the nine entries seen, only one identified a problem that needed acting on.
15. The Council identified a rocking manhole cover near to Mr J’s property which was repaired in 2022, although the Council has no record confirming this. It is arranging for an officer to visit him about the issue.

Condition of verges

16. The Council is aware of verge damage and will ask the developer to reinstate them. The works to reinstate them is likely to be done by this summer.
17. I found no fault on this complaint as the Council is aware of the damage and expects the developer to carry out works to ensure they are reinstated. It would inspect them anyway once works were complete.

Speeding vehicles

18. The Council has no other reports of speeding lorries by its waste contractor other than the report dealt with in 2020 from another resident.
19. The Council explained most of the waste vehicles are fitted with devices that log a collection’s progress on the rounds. While they have GPS (Global Positioning System) capabilities, within limits a report can be produced to give only an indication of the speed of the vehicle. This road is close to where a 30mph limit changes to the national speed limit. The Council believes this means the accuracy of any speed report would be affected because it would depend on when the GPS ‘pinged’ (received a signal).
20. The Council confirmed the waste contractor regularly communicates with the drivers to remind them of their responsibilities. More in-depth investigation can be made if specific complaints are raised which allow for the identification of individual vehicles. The Council also confirmed the waste contractor has no record of letters from the police about its vehicles speeding in this area.
21. As waste collections can start from 630am, vehicles leave the depot around 610am for the first collection points. On Monday and Tuesday, collections taken place in the south of the borough which is why Mr J’s road is used as a route to those areas.
22. On balance, I found no fault on this complaint. This is because there is simply no evidence of the waste vehicles speeding along Mr J’s road. The devices fitted to the vehicles are not designed to measure and track their speed. This means any evidential value from them would be minimal. Nor is there any evidence from the police about speeding.

Drainage

23. The Council did not receive any concerns about ponding near to Mr J’s property until he sent it his formal complaint. While Mr J did not provide the Council with photographs of the problem, I am satisfied it should have contacted him and explored it. It has now invited him to send photographs of any ponding for it to investigate.
24. I consider the failure to explore this earlier with Mr J is fault. It caused some distress as he has the uncertainty of not knowing whether any actual problem identified could have been investigated and resolved sooner.
25. I am satisfied the Council checked gullies close to Mr J’s home as part of its scheduled programme of gully maintenance. The evidence shows the nearest on the opposite side of the road to his house was not operational because of roots. The other nearest five were operational. It decided that overall, the gully system remained functional. It received no reports about flooding or drainage problems since the last inspection in February 2022.
26. Recently, the Council confirmed an officer visited the site and found a manhole cover outside his house slightly lower than the road surface. This could be the cause of some noise and vibration, although it was not an actionable or dangerous defect. The officer reported it to the utility provider which owns it to see if it will assess and correct it. It stressed in these circumstances it cannot influence whether the provider carries out work on it or not because of its minor nature.

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Agreed action

27. I considered our guidance on remedies.
28. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send Mr J a written apology for its failure to have clarified and explored the issue of potential ponding when he made a formal complaint.
2. Remind complaint officers of the need to ensure new reports raised during the complaints procedure are referred promptly through to the appropriate department.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I make the following finings on the complaint of Mr J’s against the Council:
1. Complaint A: no fault; and
2. Complaint B: fault causing injustice.

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Investigator's decision on behalf of the Ombudsman