Summary: We will not investigate Mr X’s complaint about the Council not maintaining a public right of way where he lives. This is because it is reasonable for him to pursue this matter at court. Also, we will not investigate his complaint that the Council is ignoring a breach of planning control. The Council confirms it has an ongoing enforcement investigation. We consider further investigation will not lead to a different outcome.

The complaint

1. Mr X complains the Council is failing to maintain a public right of way where he lives. He also complains the Council is ignoring his reports of a breach of planning control.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We 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. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome.

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

Back to top

How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. If a person considers that a highways authority has failed to maintain a highway it is responsible for, they can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
9. Mr X may use this process to try to get the Council to repair the bridleway. I find it is reasonable for him to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the bridleway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
10. Mr X also complains the Council is ignoring reports of breaches of planning control.
11. In response to my enquiries the Council confirms it has an open planning enforcement investigation. We consider further investigation on this point will not lead to a different outcome.

Back to top

Final decision

12. We will not investigate Mr X’s complaint because:
• It is reasonable to expect Mr X to apply to the magistrates court if the Council is failing to maintain the bridleway; and
• Further investigation into the Council’s response to reports of breaches of planning control will not lead to a different outcome.

Back to top

Investigator's decision on behalf of the Ombudsman