The Ombudsman's final decision
Summary: Mrs X complained about how the Council dealt with her when deciding she was responsible for repairs to a section of retaining wall which caused her distress and unexpected costs. We have found no fault by the Council.
The complaint
The complainant, whom I shall refer to as Mrs X, complains about how the Council dealt with her when deciding she was responsible for repairs to a section of retaining wall at her property and should pay a portion of the cost of safety fencing.
Mrs X says because of the Council's fault she has suffered distress and faced unexpected 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
How I considered this complaint
I read the papers provided by Mrs X and discussed the complaint with her. I have also considered information from the Council.
I have explained my draft decision to Mrs X and the Council and considered the comments received before reaching my final decision.
What I found
Relevant legislation The Council as highway authority has a duty under section 130 of the Highways Act 1980 to protect the rights of the public to the use and enjoyment of any highway and to prevent, as far as possible, the obstruction of the highway.
Section 167 of the Highways Act 1980 enables a local authority to serve notice on the owner of a private wall. This states: “If a length of retaining wall to which this section applies is in such condition (whether for want of repair or some other reason) as to be liable to endanger persons using the street, the local authority in whose area the street is situated may, by notice served on the owner or occupier of the land on which that length of wall is, require him to execute such works as will obviate the danger.”
For the purposes of this legislation a retaining wall is a wall, not forming part of a permanent building, which serves or is intended to serve as support for earth or material on one side only.
Generally, retaining walls within the highway boundaries fall under two classifications. Walls which support the highway or support an embankment carrying the highway are “highway retaining walls”. Walls that support land and/or property which are alongside and above the level of the highway are referred to as “property retaining walls” and are generally private.
If searches do not reveal any relevant evidence in the form of formal adoption or accommodation works then the responsibility for maintenance is determined on the likely purposes for which the wall was built and who benefits.
The above sets out the general position only and ultimately a decision about the ownership and responsibility for such a wall would be a matter for the courts.
Key events The Council wrote to Mrs X about the wall towards the end of July 2023. The Council explained it had received reports about the condition of the wall to the rear of both her property and her neighbour’s property. The Council set out the issues identified from a recent inspection and that these represented a danger to the public using the footway and remedial works were required as a matter of urgency. The Council’s letter included an image of the wall with the area of concern highlighted. The Council advised it would monitor the situation but it would contact Mrs X further about the potential for formal enforcement if works were not completed. The Council stated it had erected temporary fencing as an interim measure. The Council confirmed it had sent the same letter to Mrs X’s neighbour.
Mrs X has raised an issue about the Council’s letter above only providing an email address for contact. Mrs X explained she had contacted the Council’s main switchboard and was initially told the highways team did not accept telephone calls but was able to speak to the relevant officer when she explained the issue. Although it may have been preferable for the Council’s letter to have provided a direct telephone number for contact given the nature of its content this is unlikely to constitute fault in the circumstances of this complaint and it is not fault for the Council to manage contact with high volume departments. I also note Mrs X was able to speak to the relevant officer shortly after receipt of the letter and had subsequent email exchanges and telephone conversations with them.
Mrs X emailed the Council in early August to say both she and her neighbour did not accept responsibility for the wall and she would be seeking legal advice. This email refers to a telephone conversation of the same day. Mrs X provided photographs and stated the wall was also against other properties.
The Council responded the following day to set out the statutory duty under section 167 of the Highways Act 1980 and its reasons why it had concluded there was a shared responsibility for the entire wall between herself, her neighbour and other properties. This clearly sets out the Council’s view the wall retained the gardens of Mrs X’s property, her immediate neighbour and several other numbered properties (these are a block of flats) and Mrs X’s shared responsibility for the element of the retaining wall was proportionate to the extent of her garden being retained. The Council noted legal ownership and responsibility were difficult issues which sometimes required a decision by the courts. The Council was to provide the available historical information it held to Mrs X. The Council advised Mrs X that it would charge the property owners to which the unsafe retaining wall related to for the costs of installing the safety fencing and the ongoing costs relating to this. The Council also explained it would pass the matter to its legal team and await her further reply as she was not accepting responsibility for the wall.
Mrs X has suggested this was a threat of legal action which was unreasonable. I do not consider this to be the case. The tone of the correspondence is professional and courteous. In any situation where the responsibility for a retaining wall is challenged it would be expected that the Council would seek advice from its legal team on what, if any, action to take if the matter remained unresolved. It would have been preferable for the information about the costs of fencing to have been included in the original letter but I note this was included in the Council’s subsequent email shortly afterwards.
Mrs X contacted the Council to say she was unhappy about the fencing costs and asked why other properties had not been contacted. Mrs X provided an image of the wall and stated the area of concern previously highlighted by the Council encroached by 2 metres to the neighbouring block of flats which had not been contacted. The Council replied to explain the section of wall that was of concern related to her property and her immediate neighbour and both these properties had been advised. The Council did not have the same concern regarding the remaining section of the wall and so it had not notified those properties. However, the Council agreed to a further visit to define the exact extent of the wall which presented an immediate safety concern. The Council confirmed if the section relating to a block of flats also presented a safety concern it would advise the owners accordingly.
The Council provided details of the available historical information to Mrs X towards the end of August and apologised for the delay.
Mrs X reiterated her position that she did not accept responsibility for the wall and asked for the outcome of the Council’s further visit. Mrs X also suggested a shared responsibility between the property owners and the Council as Highway Authority due to the impact of heavy goods vehicles traffic (HGV). The Council rejected this suggestion as its position remained the wall was in private ownership and HGV traffic was a lawful use of the highway.
Mrs X notified the Council at the start of September that works would be completed as soon as possible and that she and her neighbour were seeking quotes and had arranged for the vegetation to be cut back. Mrs X made it clear she would only be completing works up to her boundary.
Mrs X sent a reminder for the outcome of the Council’s further visit in early September. The Council provided the outcome in mid-September. The further visit had identified safety issues relating to an additional section of the wall.
Mrs X contacted the Council at the end of September to say she no longer felt comfortable arranging the works as there was an issue with utility works and as the Council had not contacted the other property owners. The Council confirmed it had written to the additional affected property owners following its further visit. The Council noted it was not responsible for the ongoing utility works.
Mrs X disputes the Council contacted the additional owners about their responsibility at this point and also says it has not advised any other property owner about fencing costs. I do not propose to investigate the timing of the correspondence as I am satisfied all the relevant parties are now aware of the wall issue. It would be open to any other owner to make their own complaint if they considered there had been some fault in the Council’s communication with them or if they felt any apportionment of fencing cost in due course was wrong.
Mrs X contacted the Council in October to say the works had been completed for her section of the wall and that of her neighbour. The Council confirmed it would inspect the wall and subject to the work being satisfactorily completed would remove the fencing and raise an invoice for the installation and rental of the fencing up to that date which would be split equally between the two properties.
Mrs X contacted the Council as she was unhappy the wall was being reinspected and that not all properties were being charged for the fencing. The Council responded to explain it had a statutory duty to check this section of the wall was now safe and that all owners were being asked to pay for the fencing relating to their section of wall only and each had been contacted about this separately.
The fencing remains in place at the time of writing as the work to the remaining section of wall remains outstanding. The Council has confirmed to the Ombudsman that no invoices have been sent out yet, but it would charge Mrs X one third of the collection and delivery charges and the rental charge for her fence panels only for the period from the date of installation to the date she notified the works had been completed.
My consideration The Council has provided cogent reasons for its view the responsibility for the retaining wall is shared by all the property owners as set out above. This is not a matter the Ombudsman can decide and would, ultimately, be a matter for the courts.
The photographs I have seen show a high retaining wall next to a footway which appears to be in poor condition with loose stonework. The Council was entitled to erect the temporary fencing following its assessment the wall presented a risk to highway users and ask the relevant property owners to make repairs. There was no requirement for the Council to seek consent to erect fencing in these circumstances. The Council advised Mrs X shortly after installing the fencing that the property owners would be responsible for the costs of installing it and the ongoing costs relating to this.
The Council subsequently identified another section of the wall required repairs and notified the relevant owner. It seems to me that this could have been identified at the Council’s initial inspection visit and all relevant owners notified at the same time. However, I do not consider this caused Mrs X an injustice in terms of any delay and resulting additional fencing costs. Mrs X has suggested she was being asked to make repairs to part of the wall that was not in her ownership as the area of concern included 2 metres of wall which retained the rear garden for the block of flats. I do not consider this to be the case. The photograph provided is taken from a street view and so it is difficult to establish the garden boundaries between the affected properties due to the height of the wall and vegetation covering the top. The subsequent email correspondence in early August set out the Council’s position that Mrs X was responsible for the section of wall which retained her rear garden only. It would not be a matter for the Council to decide the garden boundaries between the affected properties. The delay in completing the works after the end of August (when the Council provided historical information to Mrs X to support its position she shared responsibility for the element of the retaining wall proportionate to the extent of her garden being retained) was largely due to Mrs X not accepting the Council’s position she had shared responsibility for the wall at that time. Whilst acknowledging Mrs X would wish to carefully consider her position there are no grounds for me to recommend the Council amend her proportion of the fencing cost.
I have found no evidence the Council has treated Mrs X unfairly or has acted with other fault in its decision making in relation to this matter.
Mrs X says the Council did not provide a reply to contact from her MP. I do not consider it is a good use of the Ombudsman’s limited resources to investigate this specific issue further as it is clear Mrs X received regular direct contact from the Council during the above.
Final decision
I have completed my investigation as I have found no fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman