Summary: We will not investigate Mr X’s complaint the Council is failing to enforce access to a public right of way. He says the alleged fault is resulting in vehicles causing damage to his fence. We do not consider the alleged fault can be said to have directly caused the injustice Mr X refers to. Further, it would be reasonable for Mr X to take this matter to court should the Council not enforce the access to the public right of way.

The complaint

1. The complainant (Mr X) complains about an alleged failure by the Council to take enforcement action against an obstruction to a public right of way. He says his neighbour has placed several large boulders on a byway opposite his property.
2. In summary, Mr X says the alleged fault has meant vehicle movement along his road is restricted. He explains when drivers turn round due to the obstacle this has resulted in vehicles causing damage to his fence on three occasions. As a desired outcome, Mr X wants the Council to remove the obstacle.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained; or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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).

Back to top

How I considered this complaint

5. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We will not investigate a complaint where the alleged fault by a council cannot be said to have directly caused an injustice to the complainant. Though I recognise Mr X’s points, the damage to his fence is the result of turning vehicles. It cannot be said that the obstruction, nor the Council’s alleged failure to enforce the access of the public right of way, is the direct cause of the damage. Any damage to Mr X’s property would likely give him a right of legal action against the vehicle drivers in the county court. We have no powers to investigate individual road users, nor decide on liability for property damage.
7. In any event, Mr X has the right to serve a notice on the Council requiring it to clear an obstruction under s130A to s130D of the Highways Act 1980. If it fails to do so, Mr X can then ask the magistrates’ court to order it to do so. Mr X could represent himself in these proceedings and at relatively low cost. I consider he could therefore reasonably take the matter to court and the restriction I outline at Paragraph 4 (above) therefore applies.

Back to top

Final decision

8. We will not investigate this complaint. This is because the alleged fault by the Council cannot be said to have directly caused the injustice Mr X refers to. Further, it would be reasonable for Mr X to take this matter to court should the Council not enforce access to the public right of way.

Back to top

Investigator's decision on behalf of the Ombudsman