Threatening preemptive letter from Barnet council about cost of damage to road - what are my rights?

Aylesbury_Duck

marcosscriven wrote: »

No-one has suggested to me how I can protect myself against this risk? At least you've been polite about your opinion, thank you, but others haven't.

The builder does have £1m liability insurance - maybe it would pay out, but how long would that take? Don't insurers try to minimise payouts?

I don't think I personally could get insurance for public pathway damage, at least not anything standard or reasonably priced, but do correct me if I'm wrong.

It seems either just don't do the work, or risk a cost of thousands.

You have had suggestions as to how to protect yourself, in posts 2,3,5,12 and 18 for example.

You're overthinking this. You've checked that your builder has good insurance cover. You simply ensure that in your contract with him you reference the council's letter and make it a condition that he covers any costs the council deem necessary, either directly or through his insurance.

marcosscriven

Aylesbury_Duck wrote: »

You have had suggestions as to how to protect yourself, in posts 2,3,5,12 and 18 for example.

You're overthinking this. You've checked that your builder has good insurance cover. You simply ensure that in your contract with him you reference the council's letter and make it a condition that he covers any costs the council deem necessary, either directly or through his insurance.

None of the suggestions show me how to break the link between the possible demand for payment from my friendly council to myself. Yes I can stipulate my builder pays, or try to get their insurance to pay.

But there's nothing to guarantee they will - yes I could then pursue the builder or the insurance, but I would be out of pocket (presumably with solicitors to add to the cost) while the council can just demand the money from me or send their own solicitors or debt collectors.

All I'm saying is I think the letter could say 'make sure your builder has insurance otherwise you will be responsible'. That way I can easily do what's in my control (make reasonable efforts to verify they have insurance). I'd be fine with that. But an essentially open ended cost that I have to bear, and then pursue, doesn't seem very fair to me.

Ectophile

What you are proposing isn't fair on the council.

If you were to employ a bunch of cowboy builders, and they wrecked the pavement and scarpered, why should the council tax payers foot the bill?

You are responsible for the builders you employ whether you like it or not. If they cause damage, and the council bills you, then you bill the builders. If their insurance won't pay out, then you sue the building company instead.

marcosscriven

Ectophile wrote: »

What you are proposing isn't fair on the council.

If you were to employ a bunch of cowboy builders, and they wrecked the pavement and scarpered, why should the council tax payers foot the bill?

You are responsible for the builders you employ whether you like it or not. If they cause damage, and the council bills you, then you bill the builders. If their insurance won't pay out, then you sue the building company instead.

Where have I said I'm employing 'a bunch of cowboy' builders? They are highly rated, and I've confirmed the company they have £1m liability insurance with. And I explicitly stated in an earlier posted I *didn't* expect the council to pay. I'm saying why should I have to pay while I try to get the money from the builders or insurers.

You make it sound easy to get money out of builders or insurance companies. You'd have to hire solicitors if either refuse, and even then you may not win.

The message here seems to be, don't do the building work unless you're rich enough to pay thousands to the council, and hope you get it back later.

Aylesbury_Duck

marcosscriven wrote: »

Where have I said I'm employing 'a bunch of cowboy' builders? They are highly rated, and I've confirmed the company they have £1m liability insurance with. And I explicitly stated in an earlier posted I *didn't* expect the council to pay. I'm saying why should I have to pay while I try to get the money from the builders or insurers.

You make it sound easy to get money out of builders or insurance companies. You'd have to hire solicitors if either refuse, and even then you may not win.

The message here seems to be, don't do the building work unless you're rich enough to pay thousands to the council, and hope you get it back later.

No, no and no again.

Ectophile didn't say you were employing cowboy builders, they were hypothesising to make a point.

If you have chosen highly rated, respectable builders, you have no problem. If you hire people you're not confident you could get payment from in the event of a problem, you're hiring the wrong people. Why would you trust them with the building work?

The message here is very definitely not as you suggest. Do your due diligence, hire reputable builders with the necessary insurance cover, ensure they commit to reimbursing costs for any damage they cause and go ahead. In the event of damage, the council isn't going to send round bailiffs the next day. They will understand that an insurance claim will take time and wait.

Letter or no letter, this exact situation is in place all over the country anyway. Even if I were having building work done, I would fully expect the council to hold me liable if my contractors damaged council-owned property. I don't need a letter to tell me so. Brent Council seems to be dealing with it professionally, having taken photos so there can be no argument and spelling it out clearly in the letter, I suspect because they've had to pick up the bill from previous homeowners not being duly diligent in their choice and management of contractors.

shortcrust

Never mind the council, I'd be fuming if my builders ruined the road and/or pavement outside my house.

EachPenny

marcosscriven wrote: »

What I don't feel is fair is to demand that from the resident. If the council were to charge me thousands or more to repair a road, and then expect me to pay thousands more for a solicitor to pursue that from a builder, it could be extremely damaging. I think they should directly go after the builder or their insurer.

Why should the council waste taxpayer's money finding out from you who your builder is (which could take months if you don't bother replying to them) then contact your builder and try and get them to pay for damage that you are liable for?

Section 133 gives the option of either recovering the costs from the landowner, or from the person who caused or was responsible for the damage.

Why should the council take the more difficult of those options?

marcosscriven wrote: »

And don't forget that this has been doled out to a 3rd party, Re Ltd., that boasts how much revenue they've raised for the council.

Irrelevant, but good that they are making people who cause damage to roads and footways pay for it.

marcosscriven wrote: »

I don't like though the bullying, and the wording that starts out sounding like you've done something wrong.

It isn't bullying. It is explaining the legal position and alerting you to the risk before work starts. I think most people would be happier with that - so they can discuss the issue with the contractor first - rather than getting a surprise large bill after the contractor has ruined the footway.

marcosscriven wrote: »

I have done so - and they are highly rated. But the council are writing the letter to me, claiming I would be responsible. They are claiming I'd have to bear the costs, and be out of pocket while I tried to get it from the builders or their insurers. Insurers don't necessarily pay out either.

It isn't a 'claim', it is a statement of fact. If your contractor causes the damage then you are responsible if the council wishes to recover their expenses for repairing it.

marcosscriven wrote: »

But if I hire a good highly rated builder, and they decide to bring in a skip, and that lorry damages the road, how on Earth am I meant to prevent or control that?

By being a good highly rated client and ensuring your contractor doesn't cause any damage. Easy.

marcosscriven wrote: »

You say 'Whether you choose to pay', but it's not clear to me the council would let me 'choose'. It makes it sound like to me I would be liable, and would have to pursue recompense further down the line. That could be many thousands of pounds and the uncertainty of ever getting it back.

I very much doubt the council would let you 'choose', you are a sitting duck compared to a builder who might go bankrupt rather than pay for the damage they've caused. You will be liable, unless the builder does no damage. Section 133 is clear about that.

marcosscriven wrote: »

No-one has suggested to me how I can protect myself against this risk? At least you've been polite about your opinion, thank you, but others haven't.

I think people have made good suggestions. The important thing is to get a good contractor and discuss the letter with them. Make sure they understand their responsibilities and that you would expect them to pay any bill you get.

marcosscriven wrote: »

None of the suggestions show me how to break the link between the possible demand for payment from my friendly council to myself. Yes I can stipulate my builder pays, or try to get their insurance to pay.

That is because there is no way to break that link, Section 133 is clear that you are responsible.

If you really push me for an answer, then you could promote private legislation in Parliament to exempt you from the provisions of Section 133. I don't think your Bill would get past first reading, and the cost of getting that far would probably pay for your the footways along your whole street to be resurfaced.

marcosscriven wrote: »

All I'm saying is I think the letter could say 'make sure your builder has insurance otherwise you will be responsible'. That way I can easily do what's in my control (make reasonable efforts to verify they have insurance). I'd be fine with that. But an essentially open ended cost that I have to bear, and then pursue, doesn't seem very fair to me.

Unfortunatley that would be ultra vires, and also a mis-statement of the law. The council cannot amend Section 133 to make you responsible only if you haven't checked if your builder has insurance. It can only enforce the law as it stands. In this situation (because the work is on private land) the council cannot ask you to require the contractor to have insurance for what it does on the public highway.

marcosscriven wrote: »

The message here seems to be, don't do the building work unless you're rich enough to pay thousands to the council, and hope you get it back later.

No. The message is "Work with your builder to make sure they don't damage the footway or road. If you aren't willing to do that, then you will be responsible for the bill."

Seems completely reasonable to me.

EachPenny

usefulmale wrote: »

If I were you, I would trawl the locale and take photos of every pot-hole and ask when the council intend to adhere to their responsibilities of the aforementioned Highways Act.

Before citing the 'aforementioned Highways Act' you might wish to peruse its contents and familiarise yourself with what these 'responsibilities' are.

You might find yourself being very surprised. (especially as you won't find the correct answer in the aforementioned Act)

usefulmale wrote: »

The council have no business bullying residents when they are not upholding their side of the bargain unless, of course, there are no pot-holes in any roads in the London Borough of Barnet.

The council aren't bullying anyone. They are helping residents by making them aware of what the law is before they have building work done. Giving them the opportunity to make sure their builder doesn't cause damage and make them liable for the costs (and expenses) of getting it repaired.

If fewer builders caused damage during building works then councils would spend less money repairing builder's damage and have more money to spend on stopping potholes. And everyone would be so much happier.

unforeseen

So will they allow you to set up a CCTV system to monitor that section of public road and path to protect your liability. How else can you provide proof that damage was not caused by your contractors.?

usefulmale

EachPenny wrote: »

Before citing the 'aforementioned Highways Act' you might wish to peruse its contents and familiarise yourself with what these 'responsibilities' are.

You might find yourself being very surprised. (especially as you won't find the correct answer in the aforementioned Act)

Section 41 of the Highways Act seems to cover the duty of the responsible authority to maintain the highways. Indeed, Barnet Council invite you to report any issues you may find regarding damage to the highway.

https://www.barnet.gov.uk/citizen-home/parking-roads-and-pavements/Roads-and-Pavements.html

EachPenny wrote: »

The council aren't bullying anyone. They are helping residents by making them aware of what the law is before they have building work done. Giving them the opportunity to make sure their builder doesn't cause damage and make them liable for the costs (and expenses) of getting it repaired.

If fewer builders caused damage during building works then councils would spend less money repairing builder's damage and have more money to spend on stopping potholes. And everyone would be so much happier.

Personally, I find the tone of that letter quite threatening. If, as the letter states, the council is taking a 'zero tolerance approach', I would expect every other road and footway in the borough to be in immaculate condition. Also, I would be taking my own photographic evidence on a daily basis starting today and I would be making heavy use of that reporting link I highlighted earlier after receiving a letter of that tone.