The Ombudsman's final decision
Summary: Mr X complained about the way the Council handled his application for a mini s278 agreement under the Highways Act. The Council was at fault for not clearly managing Mr X’s expectations about the timescales involved and for delay in completing the agreement. The delays caused Mr D frustration but did not lead to any delay in the completion of the work. The Council has agreed to apologise to Mr X for the frustration caused. It has already revised its guidance pack to more accurately reflect the timescales involved.
The complaint
Mr X complained about the way the Council handled his application for a mini s278 agreement under the Highways Act 1980 for works on his self-build development. He says the Council caused delays and failed to advise him to submit a separate licence for the foul water connection which would have enabled these works to have been completed sooner. He says this caused him distress, frustration and extra costs.
The Ombudsman’s role and powers
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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 have considered the information supplied by Mr X and have discussed it him on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
Relevant law and guidance A s278 agreement is a legal agreement under the Highways Act 1980 to allow developers to carry out works to the public highway. In some circumstances, where the works are minor, this can be via a mini s278 agreement. Works cannot begin until the agreement is completed.
Any individual or company that wants to install and maintain apparatus in the public highway must apply for a licence under s50 of the New Roads and Street Works Act (NRSWA) 1991. This is for works such as sewer connections or installing private water supplies.
Separately from a s278 agreement, developers need a permit to carry out works on the highway. Under S14(1) of the NRSWA 1991 developers apply for an order allowing for the planned closure or restriction of a road on a temporary basis whilst they carry out works on the road. Once granted the order is valid for three months. Under s14(2) of the same Act the Council can grant an emergency order.
S59 of the NRSWA 1991 sets out a council’s duty to coordinate street works. It says ‘a street authority shall use its best endeavours to co-ordinate the execution of works of all kinds (including works for road purposes) in the streets for which they are responsible: in the interests of safety to minimise the inconvenience to persons using the street (having regard, in particular, to the needs of people with a disability and to protect the structure of the street and the integrity of apparatus in it’.
The Council’s mini s278 procedure The Council produced a guidance pack to assist developers in completing a mini s278 agreement. This set out the Council’s requirement for information including a completed form, plans, drawings including a set of drawings comprising the technical details for the proposed works and the payment of relevant fees. The guidance did not give timescales for completion of the agreement but set out that ‘from its receipt SCC legal services aim to return signed and sealed agreements within 5 working days’.
What happened In June 2020 Mr X’s representative contacted the Council seeking permission to create accesses to and from Mr X’s new development. The Council told Mr X’s representative the work required a s278 agreement and it pointed them to the relevant Council guidance.
In October 2020 Mr X’s representative submitted the application to the Council. However, this did not contain all the information the Council needed. The Council told Mr X it required technical drawings.
The Council contacted Mr X in January 2021 requesting an update. Mr X said he was in the process of getting technical drawings. Mr X queried the timescales involved. The Council said this would depend on technical checks, but the legal proceedings could usually be completed within five days.
In mid-February 2021 Mr X resubmitted the s278 agreement with the technical drawings. The following week the Council told Mr X he needed a s50 licence for works to connect the foul sewer to the mains and this was a separate procedure from the s278 agreement. Later that month Mr X submitted an application for a planned road closure with a start date of 24 May 2021. This was approved in mid-March 2021.
In early March Mr X submitted an application for a s50 licence, for the foul water sewer works, with a planned start date of 24 May 2021. The Council approved the s50 application the next day. Around this time the Council’s technical team visited the site and required some amendments to the technical drawings which Mr X submitted. The Council also requested further amendments regarding the assessed costs, and completion of a commuted sums form.
Mr X asked the Council if it was possible to get an earlier start date for the street works. The Council agreed to allow Mr X to apply for an emergency road closure and told him this could be scheduled from early April. Mr X’s representative applied for an emergency road closure with a planned date for the works of early April which the Council agreed to. Mr X later asked to postpone the road closure by a week. The Council agreed to this but advised that no s278 works could take place until the agreement was signed.
At the end of March Mr X submitted the amended s278 agreement and the additional information the Council had requested. The Council reviewed this and advised the cost figures required amending. It also advised Mr X he needed to complete a COVID-19 risk assessment and provided him with details of what was required. Mr X completed this and submitted it to the Council in early April. At that time he told the Council the mini s278 would not be in place in time for the emergency road closure so he had put the work and emergency road closure on hold.
The Council gave technical approval to Mr X’s s278 application in mid-April. It was then passed to the Legal Services Team to seal the agreement.
Mr X contacted the Council to try and arrange another emergency road closure so he could carry out the works in mid-May. The Council advised this could not be accommodated due to other works in the area and Mr X would have to use the planned road closure it had already authorised with a start date of 24 May.
The Legal Services Team sealed the s278 agreement on 20 May 2021 and Mr X carried out the works in early June.
Mr X complained to the Council. It responded to the complaint in early June 2021. It did not uphold the complaint. It acknowledged there was a delay in the legal services team sealing the agreement and that Mr X was not kept properly informed about how long this would take. It apologised for this. However, it considered this delay did not affect the start date of works. It agreed to review the guidance notes to ensure they were up to date and to ensure customer expectations were better managed going forward.
Findings
The Council first received Mr X’s application for a s278 agreement in October 2020. However, it did not contain the technical drawings the Council required. Mr X did not submit these until February 2021. Once submitted there was correspondence between Mr X and the Council whereby it sought to gather all the information it required for the completed application. The Council had sufficient information to technically approve the application in April 2021.
There is no set timescale for completing a s278 agreement. The Council took two months from its submission until its technical approval. Having considered the correspondence between Mr X and the Council, there is no evidence of any undue delay in the process.
The Council advised Mr X in February 2021 that he needed a separate s50 licence for the foul water connection, and when Mr X submitted this, it approved it the next day. The evidence shows Mr X sought to complete this work at the same time as the work under the s278 agreement. On balance, if Mr X had sought to do this work sooner, given the Council’s duties under s59 of the NRSWA 1991 to coordinate street works, it is unlikely the Council would have agreed to this.
The Council’s guidance pack advised that the legal services team would seek to complete the s278 agreement in five working days. The Council took 27 working days to do this. This was fault. The Council says it had revised its procedures in light of the COVID-19 pandemic to allow 20 working days to complete an agreement. However, the Council also failed to meet this revised timescale. The Council also failed to manage Mr X’s expectations. It had earlier told him it would expect the legal agreement to be sealed within five working days when it had revised its procedures to allow 20 working days. This was fault.
These faults caused Mr X frustration but did not contribute to the delay in carrying out the work. If the agreement had been completed within five days Mr X could still not have carried out his works until after 24 May. This is because the Council did not technically approve the s278 until mid-April, after the agreed date for an emergency road closure. The Council would then not permit Mr X to carry out the works until after 24 May, in line with the planned street works authorisation it had already provided, due to other planned works taking place in the area.
The Council updated its mini s278 guidance in October 2021 to reflect the revised timescales. It has already reminded officers of the need to manage customer expectations regarding timescales. These actions are an appropriate way to prevent recurrence of the faults identified.
Agreed action
Within one month of the final decision the Council has agreed to write to Mr X to apologise for the frustration caused by the delays in completing the legal agreement and for not clearly managing his expectations regarding the timescales for this.
Final decision
I have completed my investigation. There was fault by the Council causing injustice, which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman