Summary: We will not investigate Mr X’s complaint about the Council’s relaying of a pavement by his house. This is because the Council was entitled to relay the pavement to meet its obligations under the Highways Act 1980 and if Mr X suffers damage to his property in the future it would be reasonable for him to make a claim against it at court.

The complaint

1. The complainant, Mr X, complains about the Council’s relaying of a pavement which runs alongside his garden wall. He says the Council has raised the level of the pavement due to damage caused by tree roots and it now slopes towards his property. He is concerned water runoff from the pavement will affect his garden wall and that the increased height of the pavement allows people to look over his fence.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)

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How I considered this complaint

5. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

6. The Highways Act 1980 requires councils to maintain public highways for which they are responsible. This duty extends to pavements as well as roads used for vehicular traffic and is to ensure the safety of all road users.
7. The Council relayed the pavement by Mr X’s house because it considered it out of repair. This is at least in part due to the presence of several large trees in the pavement whose roots damaged the existing surface. While Mr X believes the Council should have removed the trees and carried out the work differently it is for the Council to decide how to meet its obligations under the Highways Act 1980. The Council’s role was to ensure people who use the pavement are safe, rather than to maintain Mr X’s privacy. If Mr X wishes to install a taller fence he may wish to speak to the Council and his local planning authority about whether he requires permission to do so.
8. The Council says the majority of relayed pavement slopes away from Mr X’s wall but that the final finished levels were impacted by the tree roots. It seems likely that had the Council tried to slope the full length of the pavement away from Mr X’s wall this would have increased the level even further. In any event, Mr X’s concern on this point is about possible future damage to his wall and if such damage does occur this would be a matter for the Council’s insurers and the courts. Drainage rights are a complex legal issue and we cannot determine liability for property damage. If therefore Mr X’s wall suffers damage in the future, and whether this damage appears to be the result of water ingress or damage from the tree roots themselves, or both, it would be reasonable for Mr X to make a claim against the Council at court.

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Final decision

9. We will not investigate this complaint. This is because the Council has taken action to meet its legal obligations under the Highways Act 1980 and if Mr X suffers damage to his wall in the future it would be reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman