Decision : Not upheld
Decision date : 04 Jan 2022
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to properly respond to his reports about the condition of the road near to his home. We found there was no fault by the Council.
- Mr X complains the Council failed to respond appropriately to his complaint about the condition of the road at a Zebra Crossing outside his property. He says the noise caused by traffic passing over the crossing causes regular loss of sleep and impacts his wellbeing.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- I spoke to Mr X and considered the information he provided to us. I asked the Council for information, and I considered its response to the complaint.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant Law and Policy
Highways Act 1980
- Section 41 of the Highways Act places a duty on Highway Authorities to maintain the highway.
- Highway Authorities are expected to have a system to receive and assess reports of damage or disrepair and to allocate reasonable priority to carry out necessary repairs.
- Section 58 of the Act states that if the Highway Authority can show it took reasonable care to make sure the highway was not dangerous to traffic, this would be a defence against an action for damages.
- The Council’s policy on highway maintenance states that it will carry out safety inspections to identify and manage defects in the highway. The purpose of inspections is to identify dangerous defects or those which would cause serious inconvenience to road users. The Council uses a risk management approach to identify minimum criteria for action.
- The Council’s policy states that it will visit and inspect roads at intervals to check for disrepair. I understand Mr X’s road is inspected, as a minimum, every six months. The policy says potholes on a carriageway should be actioned where they are 40mm deep on a vertical face and are 300mm in any horizontal direction. Potholes on a footway or cycleway should be actioned if they are 20mm deep vertically and 50mm in any direction.
- Section 11 of the council policy refers to special requirements. It states, at times, the criteria for repairing a footway should be applied to a carriageway for vehicles. These include zebra crossings.
- In addition, the policy refers to depressions and humps. It states where there is a hump or depression more than 50mm in size, over a given length it would be considered a defect.
- The Council’s policy references the requirements of the Highway Act and government guidance.
- On 5 June 2020 Mr X reported that when traffic drove over a zebra crossing it was very noisy. The zebra crossing is close to Mr X’s home and he stated the noise was stopping him from sleeping. He asked the Council to assess the road surface and rectify the problem.
- An officer visited the site to inspect the zebra crossing on 10 June. He recorded that the crossing was installed just over 12 months ago by a contractor. As it was 12 months old, it was outside the guarantee period and the Council was responsible for any repairs needed. The notes stated because there were no safety defects it would do no work. It stated if the trench line became a 40mm straightedge drop then it should be reported again.
- When Mr X made a further complaint on 16 June, the Council stated there was no funding to improve the crossing. It noted the Council would use reasonable endeavours to fulfil its basic duty to keep roads safe for normal traffic.
- Mr X made a further report in August 2020. Mr X stated when installing the crossing a trench had been dug across the road. This appeared to have sunk causing a depression in the road surface. Whenever lorries went over it they rattled, causing a loud noise. The Council reiterated its position that the Council could not take action. The Council stated if finding became available for resurfacing the road more widely, it would make sure the dip in the zebra crossing was fixed.
- The Council provided us with records of inspections carried out during the period of Mr X’s complaint. They state that an officer drove down the road carrying out an inspection in March 2020. In September 2020 an officer both drive down the road and inspected elements on foot. There was a note, from the September visit, that vegetation needed to be cut back. However, it was not clear if the zebra crossing issue that Mr X reported again in August 2020 was specifically looked at during the site visit. There is no specific record of an assessment having been carried out about the condition of the zebra crossing in August.
- In September 2020 Mr X complained. He stated every time a vehicle went over the crossing, the noise was really bad and the vehicle shook and rattled. As Mr X was at home a lot the noise was getting him down.
- The Council told Mr X that as there were no safety defects, it would not be appropriate to carry out any works. The Council stated it was possible that a scheme of works would be carried out in Mr X’s area which would address issue. However, it was not clear if this would be done as it was one of a number of schemes being proposed for funding. The funding had to be spent on the highest priority projects.
- The Council acknowledged that the notes from the June site visit referred to the assessment of potholes in the highway. Whereas, its policy also had standards for footways (which zebra crossings are assessed against). In addition, it had standards for sunken areas of the carriageway.
- In response to our enquiries, a council officer did a further site visit and assessed the zebra crossing against all three areas of the council’s standards. The officer found that the issue would not be assessed against the pothole criteria or the criteria about level differences in footways. This was because there was no vertical drop or edge to a hole in the road. Rather, the area of the trench across the road had sunk slightly. So, the council assessed whether it met the criteria for work as a hump or depression. The Council measured the depression in the zebra crossing to be 35mm deep. This was less than the 50mm that warrants action in its policy. As a result, it maintained its view that it would not take action at present.
- The Council told us that it did not assess noise as such. It stated the noise generated would be witnessed at the site visit but it would not expect noise to be greater than vehicles using the road system in general where defects may exist, but would not meet the standards for repair.
Was there fault by the Council
- We found that there was some confusion over the standards the Council applied when it originally visited to assess the issue with the zebra crossing that Mr X reported. Its records referred to the pothole standard only. The Council visited again in response to our enquiries to check the sunken area of the crossing. It found that the crossing did not meet any of the criteria that warrants repair.
- Although there was some confusion over the standard the council assessed against originally, it visited the site promptly after Mr X’s reports and assessed the zebra crossing. It also carried out a further visit in December 2021 as a result of Mr X’s complaint. This confirmed that the issue was not such that met the standard for repair. There is no requirement or standard for assessing noise.
- I did not find fault by the Council. It did take appropriate action in respect of Mr X’s reports and it found the zebra crossing did not warrant repair work. I recognise this will be disappointing to Mr X, but I do not have grounds to question the Council’s decision.
- I found no fault with the Council’s decisions in Mr X’s case.
Investigator's decision on behalf of the Ombudsman