Summary: Ms X has made a complaint concerning damage to her car and that the Council is interfering with her private right of way. The Ombudsman has not identified any fault by the Council and the questions of car damage and an interference with a right of way can reasonably be resolved in court.

The complaint

1. The complainant, who I refer to as Ms X, is making a complaint in relation to Council refuse and recycling operatives blocking her legal right of way to her property. She also says the Council caused damage to her car wing mirror. Ms X says this has caused her financial loss and continuing stress and inconvenience.
2. As a desired outcome, Ms X wants the Council to tell its operatives not to place bins at the entrance of her right of access. Also, she wants the Council to provide compensation for damage to her car, distress and time and trouble.

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The Ombudsman’s role and powers

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).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. If we are satisfied with a council’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).

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How I considered this complaint

6. I have reviewed Ms X’s complaint to the Ombudsman and Council, including supporting documents. I have also had regard to the responses of the Council and applicable legislation. Both Ms X and the Council received an opportunity to comment on a draft of my decision before I reached a final review.

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What I found

Background

7. A private right of way is an ‘easement’, which is the right to use part of another's property in a particular way even though they do not own it. Interference with a right of way is a legal concept which requires consideration of a number of factors. However, in B&Q plc v Liverpool and Lancashire Properties Ltd (2001), the Court held that the test of an interference with a right of way is not the extent of the right remaining after an inference, but whether the person with the benefit of the right is being reasonable by insisting on being able to use the entirety of the right granted. Therefore, when considering whether there has been an interference with a right of way, the question to ask is whether the right of way can be substantially and practically exercised as conveniently as before.

What happened

8. Ms X’s property benefits from a right of way which she uses for vehicle access.
9. In early 2020, Ms X complained to the Council that its refuse and recycling operatives were returning bins in the area in a way which was obstructing her right of way. She also complained that, on one occasion, the operatives caused damage to her car wing mirror.
10. In July 2020, the Council issued its final response to Ms X. It said that any claim of car damage would need to be processed through its insurance policy. As regards to the right of way, the Council said the area where the bins were placed were observed as being collected in a timely manner by residents and further, were not causing any significant obstruction to traffic. The Council did say however it would seek to place the bins elsewhere and offered to write to Ms X’s neighbours on the subject to ease any obstruction of the right of way.

My findings

Damage to car wing mirror

11. By law, I cannot investigate a complaint or seek a remedy from the Council in circumstances where the complainant could reasonably take her complaint to court. In my view, Ms X is alleging that the Council negligently caused damage to her car. However, the role of the Ombudsman is to remedy maladministration and adjudication of negligence and road traffic accidents is beyond his remit. Further, we have no powers to enforce an award of damages or other remedy for negligence. On this basis, I consider Ms X should seek to process a claim through the Council’s insurance, as advised. Failing this, the restriction I describe in paragraph four applies to the circumstances of this part of the complaint.

Interference with private right of way

12. I cannot find any fault by the Council with respect to its collection of refuse and recycling at the entrance of Ms X’s right of way. As I understand, Ms X’s neighbours present their refuse and recycling for collection at the right of way which in turn are replaced there by the operatives. Since this is a private road, I do not consider the Council has any control over where local residents place their bins. However, after Ms X’s complaint, the Council has instructed its bin operatives to return the bins to the appropriate properties following collection and it has not identified any obstruction of traffic.
13. Further, I have reviewed photographs of the refuse and recycling bins being presented at the entrance of the right of way. Though I fully appreciate this may be an inconvenience to Ms X, it is my view this do not demonstrate a substantial interference with the right of way. On this basis, I see no evidence of fault by the Council. Moreover, the Council has offered to write to Ms X’s neighbours to ask them not to present their bins in a way which could cause an obstruction. I am unlikely to be able to add to the Council’s inquiry and proposal already offered.
14. In any event, adjudication on questions of an interference with a right of way usually involves making decisions on contested questions of fact and law. In my view, this requires the more rigorous and structured procedures of civil litigation in court for their proper determination. On this basis, if Ms X believes the Council is interfering with her property rights, then the restriction I describe at paragraph four generally applies.

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Final decision

15. I am not upholding this complaint as the Council were not at fault in the way its refuse and recycling operatives collected and returned bins in the area. With respect to car damage, I consider it reasonable Ms X seek a court remedy.

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Investigator's decision on behalf of the Ombudsman