Summary: Mr X complained about damage caused to his home from traffic vibration due to the location of a pedestrian refuge in the highway opposite his property. We will not exercise discretion to investigate this complaint. This is because it is reasonable for him to seek a remedy by way of insurers or the courts for the damage to his property.

The complaint

1. Mr X complained about the siting of a pedestrian refuge in the highway opposite his home. He says that over time the vibration from heavy traffic has caused cracking to his home. He says the siting of the refuge causes traffic to pass closer to his property than necessary and that it should be moved to a more suitable location.

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The Ombudsman’s role and powers

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 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)

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How I considered this complaint

4. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has been given an opportunity to comment on a draft copy of my decision.

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What I found

5. Mr X says his home has been damaged by cracking from heavy traffic passing close to it on a busy road. He believes that this is due to the existence of a pedestrian refuge in the carriageway opposite his home. The refuge causes traffic to drive closer to the edge of the highway than necessary and he thinks this increases the vibration.
6. The refuge was created following a highways decision in 2011 in response to a request from local residents to cross the busy road safely. Residents were consulted at the time but Mr X was not resident then. Mr X questioned the Council’s decision and says it may have not met the highway requirements for installation of the feature. The Council says the refuge is compliant and that, as a bolt-on removeable island, is considered to be street furniture which does not require planning or traffic regulation order approval.
7. Mr X has taken previous action against a utility provider who had a hydrant cover in the highway which he claimed was amplifying the vibration because it had sunk in the highway surface. There are no good reasons for us to exercise discretion to investigate this complaint. It is reasonable for him to make a claim against the highway authority if he believes its negligence is causing further damage. This would have to be submitted to the Council’s insurers and, if no liability is accepted, to the small claims court.
8. The Ombudsman cannot determine liability for legal claims and it is clear that Mr X and the Council disagree about the impact of the refuge in the highway opposite his home.

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Final decision

9. We will not exercise discretion to investigate this complaint. This is because it is reasonable for him to seek a remedy by way of insurers or the courts for the damage to his property.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman