Summary: The Council was not at fault for the way it charged Mrs X for repair works to the highway.

The complaint

1. The complainant, Mrs X, complained the Council:
• wrongly held her responsible for damage to a pavement when she disputes her building works caused the damage;
• carried out repairs to the pavement and issued an invoice without giving her an opportunity to comment or seek alternative quotations; and
• failed to tell her whether she had a right of appeal.
2. Mrs X says the Council’s actions caused her distress means she has received a bill she does not believe she is liable to pay.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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What I have and have not investigated

6. I have investigated Mrs X’s concerns about the process the Council followed when telling her about the charge. I have not investigated Mrs X’s concern about whether she is liable for the cost to repair the pavement. That is because only a court can determine liability issues. That part of the complaint is therefore outside the Ombudsman’s jurisdiction.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Highways Act 1980

9. Section 133 of the Act says:
• If the footway of a street that is a highway maintainable at the public expense is damaged by or in consequence of any excavation or other work on land adjoining the street, the highway authority for the highway may make good the damage and recover the expenses reasonably incurred by them in so doing from the owner of the land in question or the person causing or responsible for the damage.

Highways Managing Building Works guidance on the Council’s website

10. Construction activity can be inconvenient for neighbours, road users and pedestrians. It can also cause costly damage to the highway network. Repairing damage caused by construction activities can cause further inconvenience for road users and be costly to fix. It is therefore important that you take steps to minimise damage to highways when accessing your site.
11. Our Highway Inspection Team assess all construction sites before work begins, during the works and post completion, taking photographs to record the state of the highways. If any damage is noted and thought to be safety critical, our Term Maintenance Contractor will carry out temporary repairs, and arrangements will be made for a permanent repair.
12. Where damage to the highway has been caused by activities relating to building works, we will recover the full cost of repair from the property owner, as permitted under Section 133 of the Highways Act 1980.
13. Please do not be tempted to carry out repairs to the highway yourself, only Barnet's approved contractors can carry out work on the public highway.
14. What to do before starting any building works: You should consider if your work will use or infringe upon the public highway. This may include, but is not restricted to:
• buildings with scaffold on the footway;
• cranes working on the public highway require a licence. Cranes that move over, or over sail, the highway need a specific Over Sailing Licence);
• site hoarding fencing that is erected within 1 metre of the footway;
• building materials being stored on the highway;
• HGV vehicles crossing the footway to enter a site.
15. If your building or construction project requires any of the above, you must apply for a Highways Licence to facilitate your work safely.

What happened

16. In July 2023 the Council’s cabinet approved expansion of a pilot scheme about damage to highways. As part of that scheme the Council would inspect sites where building works were taking place to identify visible damage. Where the officer identified visible damage the Council would serve a notice under section 133 of the Highways Act 1980 on the landowner to tell them of the Council’s intent to recover from them the cost of the damage to the highway.
17. In 2024 Mrs X had some building works completed at her property. The Council’s planning department told the highways department about those works in May 2024. One of the Council’s highways inspectors visited and noted damage to the pavement and took photographs. The highways inspector noted further damage on a visit on 26 November and took photographs. The Council completed works to repair the pavement on 4 December.
18. The Council wrote to Mrs X on 21 March 2025. The Council said it considered the building work Mrs X had completed caused the damage to the pavement. The Council said it would repair the pavement and charge Mrs X £660.14. The Council said it would send Mrs X an invoice and if she wanted to dispute the notice she should write to the Council within 28 days. The Council provided photographs. The Council then sent Mrs X an invoice on 28 March.
19. Mrs X emailed the Council to appeal on 28 March. Mrs X disputed the works to her property had caused the damage to the pavement and said the damage predated her building works. The Council responded on 16 April to explain its records showed no interventional damage to the pavement outside Mrs X’s property before her building works. The Council said it therefore considered Mrs X liable for the costs. The Council explained it had taken action under the Highways Act section 133.
20. Mrs X challenged the Council again about her liability for the damage to the pavement and provided evidence of damage to the pavement elsewhere on the street. The Council reiterated its view the photographic evidence it had showed the pavement in satisfactory condition before Mrs X began building works at her property and that it progressively worsened during her building works. The Council therefore considered Mrs X needed to pay the invoice and said it could apply a local land charge if she did not. The Council told Mrs X she could put in a complaint if she was dissatisfied.
21. Mrs X put in a complaint but the Council did not change its view.

Analysis

22. Mrs X says the Council carried out repairs to the pavement outside her property and issued her an invoice for the costs without giving her an opportunity to comment or obtain alternative quotations. Mrs X also says the Council did not tell her whether she had a right of appeal.
23. The Council has confirmed it carried out the works to the pavement outside Mrs X’s property under section 133 of the Highways Act 1980 (the Act). I quote that section in paragraph 9. I am satisfied that section of the Act gives the Council the power to carry out the works and charge the person it believes responsible for the damage. There is no requirement in section 133 for the Council to notify the landowner before the works take place. Nor does section 133 require the Council to give the resident the opportunity to arrange the works themselves.
24. I am satisfied though before the Council sent Mrs X an invoice it wrote to her to tell her about the issue. The invoice followed a week later. I therefore have no grounds to criticise the Council, although I would have expected it to refer in the initial letter telling Mrs X about the charge to the section of the Act it was relying on.
25. I am also satisfied because the Council sent the invoice under section 133 of the Act Mrs X did not have a right of appeal to a court to challenge the Council’s decision. In those circumstances I am satisfied the Council followed the right process by telling Mrs X how she could dispute the notice and then telling her about her right to put in a complaint. As the Council followed the right process in this case I have no grounds to criticise it.
26. I understand Mrs X is concerned about the cost of the works. I also recognise Mrs X could have arranged for someone else to complete the works for less money. However, as I have made clear, the Act does not require the Council to engage in correspondence with the landowner before carrying out the works. I therefore cannot criticise the Council for carrying out the works before telling Mrs X or for seeking the costs it incurred.
27. I understand Mrs X’s frustration because she does not believe the works she carried out to her property are the cause of the damage to the pavement. However, as I have made clear, that is a question of liability which the Ombudsman cannot determine. If Mrs X wishes to challenge whether the works undertaken at her property caused the damage to the pavement she will need to consider taking her own legal action.

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Final decision

28. I find no fault.

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Investigator's decision on behalf of the Ombudsman