Gloucestershire County Council (19 002 423)

Category : Transport and highways > Other

Decision : Not upheld

Decision date : 04 Oct 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council removed and disposed of a concrete bollard from his land after a vehicle damaged it. Mr X said the Council then carried out sub-standard repairs to his driveway. I have discontinued the investigation. That is because we cannot establish liability in damage claims. Such decisions are matters for the courts to decide not the Ombudsman.

The complaint

  1. Mr X complains the Council removed and disposed of a concrete bollard from his land after a vehicle damaged it. Mr X said the Council then carried out sub-standard repairs to his driveway and has refused to rectify the damage it caused. Mr X said the matter has caused him frustration, and will cause avoidable financial loss should he have to replace the bollard and repair the driveway himself.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
  2. 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)
  3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I have considered the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr X and the Council the opportunity to comment on this draft decision. I considered the comments before I made a final decision

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What I found

  1. Mr X lives on a road which has concrete bollards at various intervals. One particular bollard was at the end of his driveway next to a kerb which lines the footway. In January 2019, Mr X called the Council to report that the bollard at the end of his driveway was damaged. He said it was on its side, loose and had left a hole in the ground with bits of metal sticking out. Mr X was concerned the area was dangerous and asked if the Council could fix it.
  2. The Council sent a safety inspector to look at the area the same day. They retrieved the bollard and raised a job for one of the Council’s teams to make the area safe within 24 hours.
  3. The records show that later the same day, following the safety inspectors visit, Mr X wrote an email to the Council. Mr X wrote that the safety inspector had removed the bollard and said they would send a team to patch the area where the bollard used to stand. Mr X wrote he wanted the bollard replacing. He also said he had concerns because the safety inspector had sprayed white paint on the area which he believed could be part of his driveway. Mr X wrote that he did not want a patch of tarmac where the bollard used to be.
  4. The following morning, the Council re-attended and made the area safe by tarmacing over the hole where the bollard used to be. That afternoon, Mr X called the Council again unhappy that despite him sending an email asking it not to, it still attended and used tarmac to repair the hole. Mr X said the hole was on his private land and now looked a mess because of the tarmac patching. Mr X reiterated that he wanted his bollard back and his driveway cleaned up.
  5. The Council carried out its own enquiries following Mr X’s call and found the area outside Mr X’s house where the bollard used to stand was Mr X’s private land, and not land maintainable by the Council. The Council said it could not return the bollard because it had been disposed of.
  6. Mr X formally complained to the Council about the matter. Mr X said the bollard was originally there to stop people parking across his driveway. He said the Council had carried out poor works on his driveway despite being asked not to. He said the Council took his bollard away without authorisation and disposed of it despite him asking them to return it.
  7. The Council responded to Mr X. It said it had listened to the recording of Mr X’s initial call to the Council when reported the damaged bollard. It said Mr X reported the damaged bollard as a safety issue, so based on that it raised a job to assess the damage and if necessary, remove the bollard. The Council said it was not obvious the bollard was on private property, otherwise it would not have proceeded. It said it did not pick up Mr X’s email asking it not to carry out the works until after the works were completed. The Council said Mr X’s road has double yellow lines to stop people parking on the road, therefore it would not replace the bollard.
  8. Mr X remained unhappy and escalated his complaint. The Council responded and reiterated its previous response. It said it acted on Mr X’s report in good faith with public safety in mind. It said it undertook the work to remove the safety risk.
  9. Mr X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

  1. Mr X wants the Council to replace the bollard and repair the damage he said it caused to his driveway. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately for the courts.
  2. Neither Mr X or the Council have any records to show the history of the bollard or which confirm who owns the bollard. Therefore, I cannot make a finding on the ownership of the bollard. That is a matter best decided by a court.
  3. At the time of the initial call, there is no evidence Mr X or the Council knew the bollard was within Mr X’s boundary. The Council acted in good faith when it removed the bollard and patched the hole left by it. Mr X is unhappy with the standard of the work carried out by the Council on his driveway and wants the Council to repair the damage he says it has caused. Whether the Council is liable for any damage to Mr X’s property is a legal matter. Claims for damage are matters for the Council’s insurers and the courts. The court can decide if the Council has been negligent and whether the Council should pay Mr X any damages. It is open for Mr X to make a claim for the damage in court and I consider it reasonable for him to do so.

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Final decision

  1. I have discontinued my investigation. This is because the Ombudsman cannot establish liability in claims involving damage and it is reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman

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