Summary: Mr X complains about the Council’s response to his complaint about vehicles using the public byway close to his property. The Ombudsman will not investigate the complaint because we are unlikely to find evidence of fault and an investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, who I refer to as Mr X, complains about the Council’s response to his complaint about vehicles using the public byway which runs only 2m from the end of his property. He says the vehicles go too fast, create ruts and potholes and that the lane is at a higher level than his garden which has caused flooding of his land during heavy rain.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr X and the Council. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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What I found

5. Mr X lives in a property whose garden backs out on to a lane which is a public byway. The lane is regularly used by vehicles from a water company to access its private road to sewage works further down the lane.
6. For some time Mr X has been concerned about the use of the lane. In May 2020 he contacted the Council to complain about speeding vehicles and about large water tankers causing ruts and potholes in the lane. He also said runoff from the raised surface of the lane caused his garden to flood during times of heavy rain and asked that it be repaired.
7. The Council passed his case to a footpath inspector who researched the status of the lane and contacted the water company about Mr X’s concerns. The Council confirmed the lane was a public byway and as such vehicles are allowed to use it and, because of its status, there is no obligation for the Council to provide a sealed surface for it.
8. The inspector established that at some point the water company might have repaired parts of the lane’s surface when it had repaired its own private road to which the lane leads. His contact with the company led to it installing a French drain by Mr X’s back gate as a gesture of goodwill and it undertook some refurbishment on the surface of the lane to encourage runoff onto the opposite side of the road. The company also told the inspector that it had advised its drivers to slow down. The Council told Mr X that in its view the company’s actions had provided an appropriate solution and that the Council did not consider further work was currently required.

Assessment

9. While I understand Mr X is not satisfied with the Council’s response, and believes further action should be taken to make the lane safer, the Council investigated his concerns and contacted the water company which took action the Council considered appropriate in the circumstances. It has decided no further work is required at this time and though Mr X may not agree with this decision, it is not our role to review the merits of it. As the Council advised, it is open to Mr X to contact the police if he remains concerned about speeding vehicles.
10. In responding to my draft decision Mr X has repeated his concerns about safety and the impact of the tankers on the lane and the flooding which affects his garden. However, the lane is a public carriage way along which vehicles can travel and, as a byway, there is no obligation on the Council to provide a sealed surface. It has considered Mr X’s concerns and while its investigation has not led to the outcome Mr X seeks, I do not consider an investigation by the Ombudsman would lead to a different outcome. If the work the water company has taken to try and address flooding issues has not worked then this is a matter Mr X can take up with the company.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because we are unlikely to find evidence of fault and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman