Summary: We will not investigate this complaint about an alleged breach of an easement/covenant covering the shared driveway between the complainants’ and their neighbour’s properties. There is insufficient evidence of fault in the way the Council considered the complainant’s concerns.

The complaint

1. Mr & Mrs X complain the Council has failed to take action against their neighbour to stop their bins from blocking the shared driveway, and to stop the encroachment of the neighbour’s garage door and gate over the space too. Mr & Mrs X say these issues are a breach of an easement/covenant on the two properties. They also believe the Council could take action under section 137 of the Highways Act 1980 (as amended).

Back to top

The Ombudsman’s role and powers

2. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

3. With regard to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

4. I considered information provided by Mr & Mrs X and the Council, which included their complaint correspondence, and clarification of the Council’s reasons for not taking enforcement action.
5. I also considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. I appreciate Mr & Mrs X are unhappy that the location of their neighbour’s assisted bin collection means the neighbour’s bins sometimes blow over onto the shared driveway, and that the outward opening garage door/gate encroach across this space too. But the enforcement of any associated easement/covenant for the two properties would be a private, civil matter between Mr & Mrs X and their neighbour.
7. I also made enquiries of the Council about the relevance of section 137 of the Highways Acts 1980, which gives it powers to enforce against the wilful obstruction of a highway. Having consulted with its Legal department, the Council explained that as the shared driveway is for private use by the occupants of the properties, it would not be regarded as a highway. Furthermore, a wheelie bin accidentally falling over, is unlikely to amount to a wilful/deliberate obstruction. So, it does not believe that section 137 is engaged in this instance.
8. The Council is entitled to rely on the professional judgement of its officers, and it is not our role to act as a point of appeal against its decision that section 137 is not relevant here.
9. Overall, I consider there is insufficient evidence of fault in the way the Council has responded to Mr & Mrs X’s concerns.

Back to top

Final decision

10. We will not investigate Mr & Mrs X’s complaint because there is insufficient evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman