Summary: Mr X complains the Council incorrectly claims to have adopted a private road, including an area of his private property. He wants the Council to remove the road from its list of streets and for the Ombudsman to require the Council to adhere to highway legislation. The Ombudsman has discontinued this investigation because the Ombudsman cannot decide, on balance, whether the Council has legally adopted the road or whether there are highway rights over the road.

The complaint

1. Mr X complains the Council has incorrectly claimed to have adopted a private road, including an area of his private property. He says this caused:
• financial loss as he was unable to progress a planning application;
• further loss of time and money in respect of research and legal fees;
• neighbour disputes about trespass; and
• it has removed his ability to carry out work and/or maintenance on his own property.
2. Mr X wants the Council to remove the road from its list of streets and for the Ombudsman to require the Council to adhere to highway legislation.

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. 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 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

5. I considered the information provided by Mr X which includes the Council’s responses, information from the Information Commissioner, and the First Tier Tribunal (Information Rights).
6. I have sent Mr X and the Council a draft decision and considered their comments.

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What I found

Highways Act 1980

7. Section 36, paragraph 6 of the Act sets out that councils will have, and keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.

What happened

8. In 2018, Mr X applied for planning permission to alter his home. This included changes to the road layout outside his property. He says the Council advised him to withdraw the application because his property boundary, as shown in the plans, was wrong and the proposed changes affected an adopted highway.
9. Mr X say he lives on a private road. He says a section of the road closest to his home falls within his boundary and is his privately owned driveway.
10. The Council says it has adopted the road. The Council said the road is listed on the List of Streets which shows which highways are maintained at public expense. The Council also said it had maintenance records which dated back to 2007 and undated colourised maps which showed the road was adopted.
11. Mr X asked the Council for evidence it had adopted the road. Mr X said the Council should be able to provide a record of the adoption of the road into the public highway when it became maintainable at public expense. Mr X said the evidence provided by the Council did not show what process it had followed to adopt the road. Mr X said this meant the Council had not adopted the road correctly.
12. Mr X also made a complaint to the Information Commissioner. The information Commissioner found the Council had provided Mr X with all the information it had and that, on the balance of probability, likely did not hold any further information on the matter.
13. Mr X has appealed against the ICO decision to the First Tier Tribunal (Information Rights). The Tribunal has yet to decide on the matter. However, it is noted the ICO maintains its view that the Council holds no further information on the matter. The ICO has asked the Tribunal to dismiss the appeal.
14. In response to the draft decision, Mr X said the Ombudsman should consider the matter as the Council is asserting authority over private land with no documents to support its action. Mr X says this was fault.
15. Mr X further stated the road cannot be adopted because the requirements to complete the adoption have not been met. He said the process to adopt a road is complex and, since the Council did not have any evidence, this meant it was impossible for the road to have been adopted.
16. Mr X also referred to case law which he felt the Ombudsman had overlooked. He said the judgment found the List of Streets was not conclusive evidence of a highway maintainable at public expense.

Analysis

17. There is a clear dispute between the Mr X and the Council over whether the road is adopted. Mr X says the Council does not have any evidence it has adopted the highway. In his view, this means the Council has not properly adopted the highway and so the Council should ‘un-adopt the highway.
18. The Council’s position is the road is adopted and has provided some evidence to support this. The road is listed on the List of Streets as an adopted road, on maps, and there are maintenance records from 2007.
19. It has been established the Council cannot provide any more evidence to support its position that it has adopted the road. The Ombudsman would expect the Council to have kept accurate records. However, the ICO’s decision makes it clear the Council has provided all the information it holds on the matter. Therefore, an investigation by the Ombudsman will not reveal any new information.
20. Mr X says case law states the List of Streets is not conclusive evidence of a highway maintainable at public expense. Therefore, the fact the road appears on the Council’s List of Streets does not prove the road is an adopted highway. I accept this.
21. However, it remains there is still conflicting evidence from both sides. While the List of Streets may not be conclusive evidence, it is still evidence which must be considered. Without other supporting evidence to consider, and given the passage of time, it is not possible for the Ombudsman to decide, even on balance, what process the Council used to adopt the road and whether it has been done properly. Therefore, an investigation by the Ombudsman is unlikely to produce robust findings.
22. Section 36 of the Highways Act 1980 requires the Council to keep and up to date and correct list of the streets within their area which are highways maintainable at the public expense. It is clear from the evidence the Council has kept such a list.
23. It is acknowledged Mr X disputes the Council has kept the list correct and up to date. Mr X’s view is the list is wrong because the Council has no evidence to prove it adopted the road within his boundary. Mr X says this means the Council has not met its statutory responsibilities.
24. However, as established previously, the Ombudsman cannot decide on balance whether the road is adopted. Because of this, I am also not able to decide, on balance, whether the Council has kept its List of Streets correct and up to date.
25. Finally, Mr X said the adopted road has caused neighbour disputes about trespassing and removed his ability to carry out work and maintenance on his property. This is the claimed injustice.
26. The Ombudsman would not be able to achieve the outcome Mr X wants. This is because we would not be able to make any recommendations for the Council to ‘un-adopt’ the road as we are unlikely to find fault.
27. If Mr X believes the road is his private land, and that there should not be any highway rights over the road, it is open to him to pursue the matter in Court.

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Final decision

28. I have discontinued my investigation into this complaint. This is because the Ombudsman cannot decide, on balance, whether the Council has legally adopted the road or whether there are highway rights over the road.

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Investigator's decision on behalf of the Ombudsman