Summary: There is no evidence of fault by the Council in how it reached its decision that it cannot take enforcement action to ensure a developer repairs a wall and in how it reached its decision that wall does not pose a risk to highways users.

The complaint

1. Mr X complains that the Council has failed to take sufficient action to ensure the repair of a wall which Mr X’s structural engineer considers could imminently collapse and poses a significant risk to the public. As a result, Mr X has been caused anxiety and worry about the potential for the wall to imminently collapse and he is concerned it could have financial and legal implications for him as a resident of the estate. Mr X considers he has also been put to avoidable time and trouble and expense by the Council’s inaction.

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The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement,
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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)

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How I considered this complaint

5. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Interviewed officer A, a council officer to obtain further information;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance.

6. Councils may take action to protect the public if it considers a building or structure in its area to be unsafe. Councils may order works to improve defective, dangerous or dilapidated buildings or structures.
7. Highways authorities have a duty to maintain the public highway in accordance with section 41 of the Highways Act 1980. The Well-Managed Highway Infrastructure: A Code of Practice provides guidance for highways authorities to manage their highways network on a risk based approach.
8. A section 38 agreement is used when a developer proposes to construct a new estate road for residential or other uses and will offer it to the highway authority for adoption as a public highway. Once a section 38 agreement is made the developer has to operate within a set of conditions, terms and timescales. The agreement is supported by a bond or cash deposit which can be called upon if the developer goes into liquidation or defaults on their responsibilities.
9. The Council’s safety inspection manual sets out how inspections should be undertaken including how the inspections should be recorded. Paragraph 3.1 of the manual states:

‘Safety inspections are designed to identify, record and priorities the repair of all defects likely to create danger or serious inconvenience to users of the highway network or the wider community…’

What happened

10. Mr X lives in a new development. There is a retaining wall on the boundary of the development and public highway.
11. Planning permission for the development was granted subject conditions. These included a condition for the wall to be set back to the rear of proposed visibility splays onto the main road. The purpose of the condition was to ensure adequate visibility in the interests of highway safety. The developer also entered into a section 38 agreement for the roads to be adopted by the Council. The section 38 agreement set out the works required which included works to the boundary wall for the visibility splays. The works required did not include repairs to the wall.

Consideration by Highways Teams

12. In early 2021 Mr X raised his concerns with the developer about the condition of a retaining wall adjacent to the highway. The developer contacted the Council as it considered the wall belonged to the Council.
13. In June 2021 Mr X commissioned a structural engineer to inspect the wall because he considered the Council was not taking sufficient action. The engineer concluded the wall was unsafe and liable to collapse.
14. The Council considered the developer owned the wall. In June 2021 the Council’s building control service inspected the wall and wrote to the developer advising the wall required urgent repair. However, the Council said it did not consider action under its dangerous structure powers to be justified. The Council then established the wall was within its ownership as the highway authority. Building control officers took no further action.
15. Mr X made a complaint to the Council about its failure to respond promptly to his structural engineer’s report and to repair the wall. Officer A, a senior highways officer responded to Mr X’s complaint. He said that following a request from the developer, an engineer inspected the wall on 10 March 2021. They concluded the wall showed wear and tear but was structurally safe and no repairs were required. An engineer had considered Mr X’s structural engineer’s report but considered the wall was structurally safe and did not agree it was in danger of imminent collapse or that it posed a risk to life. No works would be undertaken and the location would be monitored by engineers as part of the scheduled monthly inspections.
16. When interviewed officer A confirmed he had inspected the wall in June 2021 before responding to Mr X’s complaint. Officer A said he undertook a visual assessment of the wall and the purpose of the assessment was to consider the risk posed by the wall rather than the general condition. Officer A said when carrying out the assessment he considered the impact and risk posed by the wall to highway users. He concluded the risk was minimal and the wall should be monitored as part of the scheduled monthly inspections of the highway. Officer A confirmed he did not keep a record of the inspection but set out the findings in his response to Mr X.
17. The structural engineer’s report was considered by officer B, a highway engineer in the Council’s highways structures team. Officer B said:

• The Council’s highway structure engineers did not consider the structural engineer’s analysis for the wall to be relevant as walls with a retained height of less than 1.35m were not considered to be structural walls in accordance with the Highways Act 1980 and Well Managed Highway Infrastructure code of practice.
• The wall despite suffering from erosion due to weathering and some partially dislodged copings remained in reasonable condition. It is not therefore considered to be in imminent danger of collapse or pose a risk to highway users.

18. The Council continues to monitor the wall as part of its scheduled monthly highways inspections.

Planning enforcement and section 38 agreement

19. Mr X contacted the Council’s planning enforcement team as he considered the Council could ensure the developer repaired the wall as part of the discharge of a condition to the planning permission to set part of the wall back behind the visibility splays. The plans to discharge this condition referred to works to the full stretch of the wall. However, the Council explained to Mr X it could not enforce the annotations on the plans as they did not form part of the condition for the works for the visibility splays.
20. Mr X made a complaint about the planning enforcement not taking enforcement action to ensure the developer repaired the wall. The Council did not uphold Mr X’s complaint as there was no condition on the planning permission requiring the developer repaired the wall. It could not enforce the annotations on the submitted plans.
21. Mr X made a further complaint in late 2021 that the Council had discharged a planning condition for the wall to be moved back but the works had not been undertaken. The Council clarified that the condition for the works for the visibility splays to be installed did not require the complete rebuilding of the wall. The Council noted the works required for the visibility splays and section 38 agreement had not been completed.
22. Mr X considered should use the bond provided by the developer as part of the section 38 agreement to carry out the works and repair the wall. In response to my enquiries the Council has said the works set out in the section 38 agreement were to accommodate the visibility splays, not to address the condition of the wall. It could not call on the bond to repair the wall as the developer is not in liquidation and has now carried out the works in accordance with the agreement.

Analysis

Planning enforcement and section 38 agreement

23. There is no evidence of fault in how the Council reached its decision that it could not take enforcement action to ensure the developer repaired the wall. The plan submitted by the developer for the discharge of the condition referred to works to the wall. But the Council could only enforce the planning condition which was to set back part of the wall for the visibility splays. The purpose of the condition was to ensure adequate visibility and the condition did not include repairs to the wall. So, the Council could not take any action to compel the developer to repair the wall.
24. The Council also could not call in the bond for the section 38 agreement to repair the wall. The section 38 agreement did not include works to repair the wall and the developer was not in liquidation.
25. Mr X has said the developer has not carried out the works for the visibility splays. The Council has provided photographs to show the developer has carried out the works. But a complaint about failure to carry out the visibility splays is a new issue and beyond the scope of this investigation. This is because Mr X’s complaint is about the condition of the wall and the planning condition and section 38 agreement did not require the developer to repair the wall. Mr X should make a complaint to the Council if he considers the developer has not properly carried out the works for the visibility splays.

Highways

26. Mr X’s structural engineer and the Highways teams have different opinions about the safety of the wall. It is not my role to adjudicate between different professional opinions and decide if the wall poses a risk. My role is to examine whether there was fault in how the Council reached its decision the wall did not pose a risk to highway users.
27. There is no evidence of fault in how the Council reached its decision that the wall did not pose a risk to highway users. In the stage 1 response the Council refers to an inspection on 10 March 2021. I am not clear whether an inspection was carried out on this date or if the date was referred to in error. But the information provided by officer A at interview and his response to Mr X’s complaint satisfies me that he inspected the wall in June 2021 to assess the risk to highways users. He was therefore in a position to reach a judgment on whether wall posed a risk to highway users.
28. Mr X has raised that the Council should have followed its own Safety Inspections Manual when carrying out the inspection of the wall. The manual provides the Council should carry out a risk based approach when inspecting the highway. The information provided by officer A when interviewed and in response to Mr X shows he carried out a risk based assessment and considered the wall to be low risk. So, I consider officer A broadly followed the manual when carrying out his inspection.
29. I have considered if the Council is at fault for not recording its inspection of the wall. The Council considers it adhered to the manual as it is only required to record actionable defects. The wall has been inspected by trained technicians on a monthly basis who did not find it to create a danger or serious inconvenience to users of the highway. It records nil returns which are for the road as whole rather than an individual asset. On, balance, there is no evidence of fault as the Council has explained how it has followed the manual and its interpretation of it. I acknowledge Mr X may have a different interpretation of the Council’s manual but it is not our role to interpret what the manual means. But even if there was fault, there is no injustice to Mr X as the failure to record the inspections makes no practical difference as the Council considers the wall is not dangerous.
30. I am satisfied the Council has considered Mr X’s structural engineer report. The record of officer B’s advice shows he considered the report and explained why he disagreed with its conclusions. There is no evidence to show officer B inspected the wall. But the structural engineer’s report is detailed so, on balance, I consider officer B had sufficient information to reach a view on the safety of wall.
31. I am mindful the Council’s building control sent a letter to the developer stating the wall needed urgent repair. But the Council did not consider the condition of the wall warranted action under its dangerous structure powers. I therefore cannot say that the letter sent by building control is at odds with the Highways Teams conclusions that the wall does not pose a risk.
32. Mr X considers his structural engineer’s report must be considered by a structural engineer in the Council. He also considers the Council’s view that the wall is not a structural wall to be incorrect as it is a structural wall in accordance with the Highways Act 1980. The Highways Act 1980 provides walls of a height of above 4 foot 6 inches are structural walls. The Well Managed Infrastructure Code provides walls over 1.35m are structural walls. Mr X’s structural engineers report states the wall varies between 1 metre and 1.20 metres. There is no evidence to show the wall is over 1.35 metres. So, I am satisfied the Council is not at fault for considering the wall is not a structural wall in accordance with the Highways Act and Well Managed Infrastructure Code and there is no requirement for the structural engineers report to be considered by a structural engineer.
33. But, even if there was fault here, I could not achieve anything for Mr X by investigating the complaint any further. The Council has inspected the wall and continues to do so on a monthly basis. Even if we found fault, we would not achieve anymore for Mr X than a further inspection. It is therefore not proportionate for me to investigate the complaint any further.

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Final decision

34. There is no evidence of fault by the Council in how it reached its decision that it cannot take enforcement action to ensure a developer repairs a wall and in how it reached its decision that wall does not pose a risk to highways users. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman