The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about disrepair to the public highway. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.
The complaint
The complainant, Mr X, complains the Council failed to take appropriate action to ensure the road outside his home was maintained to an appropriate standard. He says it failed to anticipate the impact of developed accessed from the road and has not taken action to repair potholes in the road.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
The Council was not responsible for the decision to grant planning permission for the development, which rested with the local district council. While the Council was a consultee for the application it was acting on the district council’s behalf in considering the application and providing its comments. The district council then made the final decision to grant planning permission for the proposal and it reached this decision more than five years ago. Any complaint about the decision is therefore late.
In any event, Mr X’s substantive complaint concerns the state of the road and the reasons for its alleged disrepair are largely irrelevant.
This is because Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways which may fall out of repair for any reason. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
We cannot interpret the law to say the Council has failed to fulfil its duty; this is a matter for the courts. If Mr X believes the road is out of repair he may serve notice on the Council under Section 56 of the Act and if it does not resolve the issue he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman