Summary: We will not investigate this complaint about highway maintenance and noise because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to approach the court about the matter is he wishes to pursue it, who are better placed to consider the issue.

The complaint

1. Mr Y complained the Council has failed to repair an issue on the road near his home, leading to there being a loud noise from the road particularly from HGV traffic.
2. Mr Y says the noise is excessive and causing him disturbance and inconvenience.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
4. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

Back to top

How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

7. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
8. However, under the Environmental Protection Act 1990, Council do not owe a duty to investigate noise from traffic. Its duty, as a highways authority, is to reasonably maintain the highways so it is free of danger to all uses who use the highway in the way normally expected of them. It is only required to maintain the highway.
9. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
10. The Council considered relevant information, taken on its site visit and from Mr Y, considered the issue and decided what work is needed and how it can be completed. Where it has been able to it has explained to Mr Y when the work will take place and where it is not able to give a time frame has explained how it will monitor the situation to ensure safety on the highway.
11. While Mr Y may disagree with the Council’s decision, the issue, including the noise has been properly considered by the Council. As the Council has sought to maintain the highway, in accordance with its duty, it is unlikely we would find fault, even if noise has continued, as explained in paragraph seven. Consequently, as there is not enough evidence of fault to justify investigation, we will not investigate.
12. However, if a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
13. Mr Y may use this process to try to get the Council to repair the road, where he feels it is not properly maintained and has degraded. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use this right to go to court about this matter.
14. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

Back to top

Final decision

15. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mr Y to approach the court about the matter is he wishes to pursue it, who are better placed to consider the issue.

Back to top

Investigator's decision on behalf of the Ombudsman