Summary: Mr X complained about highways works the Council carried out to widen the road outside his property. He stated they have had a detrimental effect on his and his family’s health. On the evidence seen so far, there was no fault in the Council’s actions.

The complaint

1. Mr X complains about works by the Council to widen the road outside his property. He states:
• the title plan used by the Council is inaccurate and as a result access to his property is now dangerous because he must reverse across two lanes of traffic;
• the placement of a road sign by his driveway obscures his sightlines;
• there is a blind spot caused by the placement of a new road sign; and
• the noise and vibrations from the traffic means he cannot sleep at night.
2. Mr X states the works have had a detrimental impact on his and his family’s health. He wants the Council to reinstate his driveway.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Correspondence indicates Mr X first became aware of the issues he complains about in mid-2019. However, I have decided to exercise my discretion and investigate Mr X’s complaints. The is because Mr X raised the matter without undue delay with the Council and he has also been to the Planning Inspectorate and his MP. He also says he has had some medical issues brought on by the stress of the situation.
5. 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)
6. 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

7. I spoke to Mr X and considered his view of his complaint.
8. I made enquiries of the Council and considered the information it provided.
9. I wrote to Mr X and the Council with my draft decision and will consider their comments before I make my final decision.

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What I found

Roads, pavements and grass verges

10. As a general rule Land Registry title plans do not show roads, pavements or grass verges outside of a building or parcel of land. However, there is a legal presumption in common law that the property fronting onto the road includes ownership of the paving, grass verge and road to the mid-point. This presumption can be disproved by evidence to the contrary.
11. It is the practice of the Land Registry to outline on the title plan in red ink the property owned, but to exclude the front pavement, grass verge and road. The only way to be sure who the owner is, is to search by plan.

Statutory nuisance

12. For something to count as a statutory nuisance it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.

Noise and vibrations from vehicles using the public highway

13. There is no legal limit to road noise, although noise levels may be taken into account when new roads or houses are planned.
14. Even if this type of noise does not constitute a statutory nuisance, if it unreasonably interferes with the enjoyment of land, it can be treated as a private or public nuisance in common law.
15. A private nuisance usually is caused by a person doing something on their own land, which they are lawfully entitled to do but which becomes a nuisance when the consequences of their act extend to the land of their neighbour.
16. A public nuisance arises from an act that endangers the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all.
17. Councils have very limited powers to deal with road traffic noise, but they have a legal duty under the Land Compensation Act 1973 and the Noise Insulation Regulations 1975, to provide noise insulation in homes, where traffic noise from new or significantly altered roads exceeds the recommended levels.

What happened

Council system

18. When the planning application was approved which started this chain of events, there was a county council in existence which acted as the highways authority for the area. Underneath the county council, there were a number of smaller councils which had different responsibilities, including determining planning applications for their area. It was common for these planning authorities to consult with the county council, in its role as highways authority, when a planning application was likely to impact on the highway.
19. In April 2021, the old system was abolished in the area, and one council was set up. This was a unitary council which meant it combined all the functions held previously by the different councils, including those of a planning authority and a highways authority.

Planning application

20. Prior to 2021, one of the planning authority councils granted planning permission for an application to build housing located a short distance from Mr X’s house.
21. As part of the application process, the planning authority consulted with the county council in its role as highways authority.
22. In addition, a road infrastructure and design consultancy was appointed to carry out two road safety audits. These highlighted a number of safety concerns, but these did not relate to the issues Mr X has raised.
23. The highways authority made no objection to the application subject to conditions relating to a traffic mitigation scheme on the road Mr X lives on. The scheme involved widening the stretch of road outside Mr X’s and his neighbour’s houses by utilising the current grass verge as an additional traffic lane. The planning officer who wrote the report on the planning application stated they thought the widening of the road, together with the other traffic mitigation measures satisfied national planning policy.
24. The planning authority also consulted with properties which it deemed would be affected by the proposed housing development. Because of the distance from the location site, Mr X was not affected by the new development. Therefore, the Council did not consult him.
25. The planning application was granted permission. The highways authority entered into a section 278 agreement under the Highways Act 1980. This allows councils to set up a legal agreement with a developer to make permanent alterations or improvements to a public highway as part of granting planning permission.
26. Mr X complained to the Council about the matters raised in paragraph 1 of this decision statement. He remained unhappy and complained to the Ombudsman.
27. In response to my enquiries, the Council provided the information it relied on when determining ownership of the land outside Mr X’s property. This included maps from the 1880s and 1970s which demonstrated the land had passed from private to public ownership and had been part of the public highway for many years.
28. The Council also said it was uncertain if one of the defunct councils had responded to Ms X’s complaints about noise and vibration. It apologised for this omission and said "our Highway Maintenance Plan does not make any allowances for problems of vibration or noise caused by either traffic movement or an uneven road surface... it is a matter for the homeowner to prove from an independent survey that any damage to the property is caused from an actual issue with the maintenance of the carriageway, rather than Northamptonshire Highways having to provide evidence that it is not their responsibility". The Council said if, after the results of the survey, a homeowner wished to pursue this, it would be via an insurance claim against the Council.
29. The Council also made the point that despite the new housing estate, the amount of traffic using the road outside Mr X’s property had not significantly increased, either in volume at any one time or in numbers across the day; the road widening scheme had been implemented to improve the flow of traffic. Therefore, there could not be any additional noise or vibrations to the ones previously experienced by Mr X.

My findings

30. The Ombudsman is not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
31. The Council has evidenced the land outside Mr X’s property, which was used as part of the road widening scheme, is part of the public highway. Therefore, it did not need Mr X’s permission to use the land. There was no fault in the Council’s actions.
32. Under the old two-tier council system, the planning authority council consulted appropriately with the highways authority council. Prior to the work starting, two independent safety audits were carried out and the recommendations were actioned. No issues relating to Mr X’s property were raised. There was no fault in the Council’s actions. If Mr X remains concerned about sightlines caused by the new road signs, he should raise this with the Council. I have seen no evidence he has done this so far.
33. In relation to noise and vibrations, the Council’s point that the number of vehicles outside Mr X’s property at any time will not be significantly higher than previously, is a valid one. It has also said any damage relating to noise and vibrations are insurance matters following an independent survey commissioned by Mr X. I do not find fault with that approach.

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Draft decision

34. On the evidence seen so far, there was no fault in the Council’s actions. Subject to further comments by Mr X and the Council, I intend to complete my investigation.

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Investigator's decision on behalf of the Ombudsman