Summary: Miss Y complains about the Council delayed in responding to her reports of a collapsed retaining wall and has not taken effective enforcement action since. Miss Y says this has made it impossible for her to carry out repairs to her section of the wall and significantly increased the costs. The Ombudsman finds fault in the information the Council provided to Miss Y and the way it considered enforcement action.

The complaint

1. The complainant, who I refer to as Miss Y, complains about the way the Council responded following the collapse of a retaining wall at the front of her property. She says the Council did not give clear information about how she could go about repairs, and its actions since have obstructed her from completing the repairs. She says this has also led to significantly increased costs for the work.

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The Ombudsman’s role and powers

2. 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),
3. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 considered the information Miss Y provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Miss Y and the Council for their comments before making a final decision.

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What I found

Law and Guidance

6. Section 167 of the Highways Act 1980 applies to any length of retaining wall within four yards of a street, which is at any point four feet and six inches above the level of the ground at the boundary of the street. S167 says that no length of retaining wall may be constructed other than in accordance with plans, sections and specifications approved by the local authority. Any person aggrieved by the refusal of the local authority to approve any plans, sections and specifications may appeal to a magistrates’ court. If a person erects a length of retaining wall in contravention of s167, they are guilty of an offence and liable to a fine. If a length of retaining wall is in a condition that is liable to endanger persons using the street, the local authority may serve a notice on the owner or occupier, requiring them to carry out works to remove the danger.

Background

7. In January 2021 part of the retaining wall at the front of Miss Y’s property collapsed during a storm. The wall holds up the earth from Miss Y’s front garden and borders the pavement and street. The wall also stretches along the front gardens of Miss Y’s neighbours.
8. Miss Y immediately contacted the Council as rubble from the collapsed wall had fallen into the road, presenting a safety risk. Miss Y says the advisor she spoke to said someone would get back to her, but no one did. An officer from the Council visited and placed a cone by the wall but did not speak to Miss Y.
9. Miss Y also contacted several builders to enquire about repairs to the wall. Miss Y says a builder attended and gave her an estimated quote of £7,000 to repair the wall. However, all the builders she spoke to said that because the wall impacted the highway, Miss Y would need to use a builder that was accredited by the Council.
10. Miss Y had not heard anything further from the Council so contacted it again, four days after the collapse. The Council’s records show that a highways officer spoke to Miss Y and explained the wall was Miss Y’s responsibility to repair but the rebuild would need to be approved by the Council.
11. Four days later the wall collapsed much further. At this point the whole of the wall covering Miss Y’s property collapsed plus portions of the wall to either side, covering her two immediate neighbours’ front gardens. Miss Y says she removed much of the rubble from the road. She contacted the Council again and says an advisor told her it was a private matter and nothing to do with the Council. She says she then contacted a councillor who visited the property. Later that day someone from the Council placed a cone. The following day a senior engineer from the Council visited the site and met with Miss Y.
12. Miss Y says the engineer saw the collapsed wall, laughed and said he had the afternoon off. Miss Y said the engineer gave her his business card then telephoned a contractor who he said would fix the wall. Miss Y says the engineer said she had to use this contractor. She says the contactor arrived at which point the engineer left. She says the engineer but did not give her any further information or tell her there were any other options. Miss Y says the Council’s highways manager then attended the site and told her she needed to get the wall fixed as it was enforceable. She says the manager said he had known about the wall a week ago and left a report on someone’s desk but they were off work.
13. Miss Y says she telephoned the contractor who said they would make the wall safe but delayed in doing so for two to three weeks. In early February 2021 Miss Y’s mother telephoned the Council to say she had not received any further contact or advice from the Council. The Council emailed Miss Y to say the engineer had attended, provided details of a contractor, and as it was a private matter there was no further support the Council could provide.
14. Miss Y responded that she accepted the wall was her responsibility but understood she needed to use a builder approved by the Council. She had only been given the option to use one contractor and was told the Council had no list of accredited contractors. The contractor the Council put her in touch with said he would do the work but did not. She was now having problems engaging with her neighbours to jointly rebuild the wall as part of it had collapsed from their properties. Miss Y asked:
• If she had to use the contractor Council put her in touch with and, if not, to provide her with a list of council approved builders she could appoint
• If the work was enforceable and what the process of enforcement would be. Miss Y suggested the issue would be resolve faster if the Council enforced against all neighbours or the Council carried out the work and charged each household
• If the matter could not be enforced, whether the Council could mediate between herself and her neighbours to resolve the matter
15. The Council responded in late February 2021 that Miss Y did not need to use that contractor. She needed to use a competent builder of her own choice. She provided names of two other builders that were on the Council’s framework for Miss Y’s assistance. It said the Council could serve a notice on the owners to make safe the structure but could not mediate between neighbours as this was a private matter.
16. In early March 2021 Miss Y emailed again to say the Council contractor had, shortly before the Council responded, attended and placed concrete blocks in front of her garden and the remaining wall, to make the area safe from further collapse. The contractor charged Miss Y a rate of £60 per week for rent of the concrete blocks. She thanked the Council for the other contractors and said her understanding was that other builders also needed to be accredited to work on the public highway. She asked for more information about the enforcement process and at what point the Council would do this. Miss Y said her neighbours were ignoring her efforts to communicate with them over the repairs. She said her neighbour on one side had carried out repair works to their wall, without using a Council accredited builder. Miss Y said she was concerned they neighbour would not now give consent to build into his section of the wall, which was the only way to repair hers, as they were part of the same wall.
17. In late March 2021 the Council responded. It said it would serve an enforcement notice simultaneously across all properties affected by the wall collapse. It said the notice will set out the scope of the works the Council expects to be carried out, together with the names of suitably qualified and insured contractors who could do the work. It said contact details of a nominated officer would be provided who would be responsible for coordinating all the necessary approvals for the works and certify the works were carried out to the satisfaction of the Council.
18. The Council served enforcement notices on Miss Y’s neighbours but not on Miss Y. The enforcement notices to the neighbours said they must ‘Erect a retaining wall to a depth and specification that will prevent the land to slide/collapse and is approved by the Council under Section 167’.
19. In late April 2021, Miss Y chased the Council for an update on the enforcement notices. The Council responded that it had served notice on the two neighbours. It said one had complied with the notice and the other had not. Miss Y complained the neighbour had not properly complied with the notice, the Council had not done what it said it would do and had not appointed anyone to coordinate the work as promised.
20. In November 2021 Miss Y made a formal complaint to the Council. The Council did not uphold the complaint.
21. Miss Y says, at this moment in time, she has agreed with one neighbour to jointly repair the wall. However, the neighbour who already completed work has refused to coordinate with her or carry out any further work. She says the work the neighbour has done is unsafe and is a foot short of her boundary. She says that it will incur extra costs to construct a wall that does not link into her neighbour’s wall, and her costs for the build are now more than £16,000. Miss Y says there are extra cost she has paid on top of this, for example for surveyors’ reports and solicitors costs, because of the difficulties with her neighbour. Miss Y says the original contractor has not invoiced her for the concrete blocks or responded to any of her messages. However, the bill for hire would now stand at more than £4,000 and increasing.

Findings

22. It is clear there has been confusion in this case about who Miss Y could use to construct the wall. Miss Y had the impression from the start that she needed to use a builder that was specifically accredited by the Council. My understanding from the Council’s response is that is not correct. Miss Y was free to obtain quotes from any builder she believed was competent, then submit details and plans to the Council for approval. The Council would then decide if it was happy for the work to go ahead in line with the plans. The Council might also do basic checks on the builder, like checking their liability insurance cover.
23. The Council does have a framework of builders it uses and may recommend. However, there is no requirement to use one of the builders on this framework and it is not an accredited list the Council would routinely provide to the public.
24. Miss Y first got this impression because every builder she spoke to said she needed to use someone already approved by the Council, and therefore they could not do the work. It is not clear why so many builders in the area held this view if it is not the reality. The Council’s response says ‘Our department no longer works from approved lists of contractors’. This suggests it used to work that way in the past. However, the Council says this was only for internal use and it would not routinely provide this to the public. The Council also suggests that many builders do not like to complete work affecting the highway as permits are required to do so, creating an extra administrative burden. It says contractors could have mistakenly said they were not approved when in fact anyone can apply for a permit.
25. There is no dispute that Miss Y was privately responsible for repairs to the wall outside her property. However, due to the wall bordering the street, she had a legal responsibility to go about those repairs in a way that satisfied the requirements of s167. The Council was therefore necessarily involved. As part of my investigation, I have considered whether the Council provided clear information and guidance to Miss Y about her responsibilities and options. I have also considered the Council’s approach to serving the enforcement notices.
26. I have separated my findings into the following stages:
• The first week after the initial collapse
• The period between the engineer’s visit and serving of enforcement notices
• The serving of enforcement notices and following actions

The first week

27. Miss Y says the Council delayed in visiting the site and this meant she was not able to make the wall safe before it collapsed further.
28. I have reviewed the records of contact during this period and can see Miss Y telephoned the Council twice before the further collapse. I cannot see evidence the Council gave clear information to Miss Y during either call. On the first call she was told someone would follow up and call her back, but they did not. On the second call it was made clear the Council would need to approve the works, but I cannot see the Council provided information on how to go about gaining approval, or who Miss Y could use.
29. When the engineer visited, he simply telephoned a contractor who he said would fix the wall. Miss Y says the engineer told her she had to use this builder. I cannot make a finding on exactly what was said. However, there is no indication the engineer made clear Miss Y could use any builder of her choosing, or what the process was for gaining approval from the Council. This reinforced the impression to Miss Y that she could only use a builder the Council had already approved, and therefore the contractor provided was her only option.
30. Miss Y’s priority during the first week was to make the wall safe from further collapse, before repairs could begin. I cannot say the Council is responsible for the further collapse. There is no guarantee a contractor would have made the wall safe in time to prevent the further collapse. Whatever the Council’s role, Miss Y was privately responsible for the condition of the wall. However, Miss Y’s hands were tied by the fact that to do work without approval of the Council would lead to her committing an offence, liable with a fine. Therefore, the Council had a responsibility to provide clear information about how she could go forward. The lack of evidence it did so is fault. This caused distress to Miss Y in respect of uncertainty about what she needed to do, and whether the further collapse could have been prevented without a delay in identifying a suitable builder.
31. I recommend that going forward the Council produce a guidance note for residents on their responsibilities under s167, their options around who they can use to complete works subject to s167, and the procedure for obtaining approval from the Council.

Period between engineer’s visit and serving notices

32. It is clear Miss Y had a bad experience with the contractor the Council recommended. I acknowledge that Miss Y had the impression this was her only option and have found fault in the lack of information provided. However, it remains that Miss Y engaged the contractor on a private basis and the Council is not directly responsible for any deficiencies in the service he provided.
33. Likewise, as it was a private arrangement, I cannot recommend the Council reimburse Miss Y for costs of the block hire. I understand Miss Y has not been charged for this at present and, in the circumstances, may have grounds to refuse payment should the contractor reappear after what is more than a year of absence.
34. However, I have identified fault in the information the Council provided to Miss Y about her options, and that this contributed to her believing she could only use that contractor. The contractor provided a significantly more expensive quote than Miss Y has since obtained elsewhere. The uncertainty about whether Miss Y may have to face a battle over a potentially significant bill from the contractor causes further distress and feeds into the injustice I have already identified.
35. I can see Miss Y contacted the Council several times during this period. The Council confirmed that Miss Y did not need to use the existing contractor and needed to use a competent builder of her own choice. It provided further names of contractors on its framework. It seems Miss Y continued to understand that she could only use an accredited builder, on the Council’s framework.
36. The Council could have been more explicitly clear at this point that there was no requirement to use a builder on its framework. I can see why, given everything that had happened before, Miss Y may have continued to think that a ‘competent builder’, meant one approved by the Council. However, Miss Y has engaged one of those builders and gone ahead with a quote. It is impossible for me to say whether Miss Y would have had a better or worse experience with someone other than the current contractor.

Serving notices and following actions

37. The main ongoing problem for Miss Y is the dispute with her neighbour. On the face of it, this is a private matter between Miss Y and her neighbour. However, again, the Council is necessarily involved as it is responsible for approving any work to the wall and served enforcement notices.
38. The Council initially told Miss Y it would serve notices on all the neighbours, then have one officer to coordinate approval of the plans from all households. It did not follow through with this. Instead, it only service notices on the two neighbours, not Miss Y. The Council’s response to my enquiries accepts this was an error of judgement.
39. I understand the Council visited and inspected the works to the neighbour’s section of the wall. However, I cannot see a clear analysis for why the Council considers this complies with the enforcement notice.
40. There is no explanation of why or how the wall can be deemed safe without any connection to the neighbouring wall. I note Miss Y obtained a quote for a design that would allow her section of the wall to stand separately to her neighbour’s. However, this involved significant changes to the design and increased expense and the contractor has now pulled out. There is no explanation for why the Council considers the neighbouring wall does not need to meet a similar standard of design, or why the Council has not taken enforcement action in respect of the works being completed without prior approval.
41. Miss Y also raised concerns with the Council that the neighbour’s wall ends a foot short of her boundary. I cannot see evidence the Council has considered whether this is the case, or if not, whether it will be safe in future.
42. I therefore find fault in the Council’s enforcement action and recommend it review its decision about whether the works to the neighbour’s wall satisfy the enforcement notice. The review should consider:
• whether the wall falls short of the boundary
• whether to be safe it needs a connection to Miss Y’s section of wall
• if not, provide a clear analysis of whether the Council considers the wall in its current state is safe without a connection and why, or
• if any further works are required to make it safe in the absence of a connection.
43. If the Council finds the works as they are not adequate, it should invite plans from the relevant parties in line with their responsibilities under s167. A single officer should coordinate that process and review any plans received.
44. It is difficult to assess the level of direct injustice this causes to Miss Y. I understand that constructing the wall with no connection is more expensive for Miss Y than if there was a connection. However, I cannot say for certain what decision the Council would have made but for the fault. It is for the Council to properly consider this point going forward. And if the Council finds the walls can exist safely without a connection, then it cannot force the neighbour to agree a joint plan with Miss Y. That would be a private dispute between Miss Y and the neighbour.
45. However, the fault again causes an injustice to Miss Y in terms of avoidable distress and uncertainty. This again feeds into the distress and uncertainty I have identified throughout my findings. I recommend the Council pay Miss Y £250 to acknowledge the distress caused.
46. I understand this does not address the increased costs Miss Y has incurred due to the further collapse and changes to the design. However, I have outlined why I cannot find the Council is responsible for those costs and the figure for distress is in line with the Ombudsman’s remedies guidance.

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Agreed action

47. I recommend that, within a month of this decision, the Council:
• Apologise to Miss Y for the fault identified
• Pay Miss Y £250 to acknowledge the distress caused
• Carry out a further inspection of the work to the neighbour’s wall. Review its decision on whether this complies with the enforcement notice. In doing so:
1. Identify whether the wall falls short of the boundary
2. Provide a clear analysis of whether, to be safe, it needs a connection to Miss Y’s section of wall and the reasons for that decision
3. If it does not need a connection, provide a clear analysis of whether the wall in its current state is safe or if any further works are needed to make it safe
4. If the Council believes the wall needs a connection, or is not satisfied the wall is safe in its current state, review it decision relating to enforcement action and appoint a single person to coordinate enforcement action across the three properties.
48. I also recommend that, within three months of this decision, the Council:
• Produce a guidance note or factsheet for residents on their responsibilities under s167, their options around who they can use to complete works subject to s167, and the procedure for obtaining approval from the Council. Provide this guidance note to any residents who make enquiries about this kind of work going forward.

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Final decision

49. I have found fault in the information the Council provided to Miss Y and the way it considered enforcement action.

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Investigator's decision on behalf of the Ombudsman