Decision : Closed after initial enquiries
Decision date : 20 Mar 2018
The Ombudsman's final decision:
Summary: Mrs X complained about the Council’s decision to prevent car parking on common land which it manages. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault on the Council’s part. Only the courts can determine access rights to land.
- The complainant, whom I shall call Mrs X, complains about the Council closing an area of common land to car parking. She says she has parked on the land for decades and that other parking within the town is limited. She says the Council may have acted unlawfully by denying access to the common to residents.
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’. 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
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I have considered all the information which Mrs X submitted with her complaint and she has commented on the draft decision.
What I found
- Mrs X says the Council closed access to land which has been used as a car park by residents and visitors to the town for decades. She says that there is limited parking in the town and that there is nowhere to park conveniently overnight.
- The Council says it closed access to the common land after it conducted a safety report which indicated that the Council could be liable for accidents involving vehicles and pedestrians on land for which it is responsible. It took the decision to place boulders along the side of the land to limit access to pedestrians. The Council says there was never any permission for the land to be used by vehicles and that bye laws do not permit car access on the land. In August 2017, a Council Committee voted to restore the land to public green space.
- Mrs X and other residents challenged the Council’s authority to close the common land to residents. They say the action breaches their common law rights of access. The Council says it is authorised by the byelaws and prevent vehicle access and that this is reinforced by its duty under the Road Traffic Act 1988.
- The Ombudsman cannot determine challenges to local authority actions on a point of law. It is clear that the Council believes it is acting according to the law and byelaws in the interests of public safety. If Mrs X or other residents wish to challenge the lawfulness of the Council’s actions they must seek a judicial review in the High Court.
- The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault on the Council’s part. Only the courts can determine access rights to land.
Investigator's decision on behalf of the Ombudsman