Summary: X complained about how the Council acted in adopting their land as highway maintainable at public expense. X said the Council’s decision caused significant injustice including interfering with their legal land rights and denying them a commercial opportunity. We considered further investigation would not provide X with a meaningful outcome for their complaint. We discontinued our investigation.

The complaint

1. The firm Z represent X in their complaint about the Council not acting properly in adopting their land as highway maintainable at public expense because it:

• failed to engage with them despite knowing they owned the land and Z had asked to be kept informed about proposals to adopt it; and
• failed to follow and apply correct procedures for adopting the land, including placing the site notice beyond the land to be adopted.

2. Z also said the Council failed to fully respond to X’s complaint or within a reasonable time.
3. Z said what happened benefited a third-party developer while ignoring X’s rights as landowner. Z said X lost the use of their land without being consulted or compensated.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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 may decide not to continue with an investigation if, for example, we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered Z’s written complaint and other supporting information. I also considered information on the Council’s website about the third-party development linked to the highway issues in the complaint.
7. Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

Highways

8. The law, mainly the Highways Act 1980 (‘the 1980 Act’), sets out how a local highway authority may adopt a new or an existing private road to become a public highway maintainable at public expense.
9. Section 228 of the 1980 Act (‘Section 228’) concerns the adoption of ‘private streets after the execution of street works’. Under Section 228, the authority may display a notice “in a prominent position in the street”. The notice declares the street to be a highway maintainable at public expense after a calendar month. The month gives any owners of the street the opportunity to object to the authority. An objection from the majority of owners stops the street becoming a highway maintainable a public expense. The authority then has two months to apply to the Magistrates’ Court for an order overruling any objections. The owners have a right of appeal against any court order overruling objections. If no appeal is made or appeals lead to a decision in favour of the authority, the street will become a highway maintainable at public expense.
10. Section 228 gives two months for people to challenge the authority’s decision or later court decisions. And Section 228 says, “…no power, however worded, to enlarge on any such time, is exercisable for the purposes of this section.”
11. Highway authorities may adopt new roads under Section 38 of the 1980 Act. This allows people, including developers, to enter into a legal agreement with the authority for the adoption of a road built on their land.
12. Under Section 31 of the 1980 Act, a landowner can place and maintain a notice on a ‘way over any land’ telling people they do not intend it to become a public highway.

The Openness of Local Government Bodies Regulations 2014

13. Councils will authorise their officers to make decisions under a ‘scheme of delegation’. The Openness of Local Government Bodies Regulations 2014 cover decisions made by officers using their delegated powers. Generally, where an officer makes such a decision they must produce a written record of that decision as soon as reasonably practicable. The written record must contain information set out in the 2014 Regulations, which includes “details of alternative options, if any, considered and rejected…”

What happened

14. The Council granted planning permission for a major mixed-use development. The development site was largely owned by the applicant developer and included a private road. The site also included X’s property. This comprised a building with adjoining land, used as a car park, and the first part of the private road where it joined an existing public highway. The private road owned by X (‘the Road’) would provide access into the development site, which was largely to the rear of X’s property. The development included changing the use of X’s property and X moving to a new building on another part of the development site.
15. The development started and the developer carried out works to the private road, including the Road and adjoining land owned by X. Z later told the Council the works were carried out by the developer without X’s consent and led to a loss of an access to, and car parking spaces on, their property.
16. Some months after the works took place, Z wrote to the Council asking whether a Section 38 agreement was being discussed. A Council highways officer said there had been discussions, but not recently, about a specification for the development roads. The developer had not asked for a Section 38 agreement. In reply Z said X were to have moved to a new building on the site as part of the development. They had not reached an agreement with the developer and X expected to remain in their current property. Z asked the Council to ensure it took this into account in any further discussions with the developer and to keep them informed of those discussions.
17. About three months later, the Council, at the request of the developer, put up a notice, citing Section 228, and describing a length of ‘private street’ that included the Road. The notice said the private street would become highway maintainable at public expense at the end of a calendar month unless the owners objected. Z said they found out the notice was put up beyond the rear of X’s property and so not where they or their representatives would see it when using their property. Z also said the notice was placed outside the land it referred to.
18. About six months later, Z wrote to the Council saying the developer had just sent them a copy of the Section 228 notice. Z said the Council had purported to declare X’s land to be highway maintainable at public expense about five months earlier. Z raised various objections to the Council’s action, including asking for the delegated decision or other report authorising the decision.
19. In response the Council said Section 228 was appropriate where it followed the execution of street works. It had placed the notice on a lamppost, checked it each week, left it in place for more than one month, and allowed time for objections to arrive by post.
20. Z made a formal complaint to the Council for X. It took the Council 50 weeks to put Z’s complaint through its two stage complaints procedure. Z raised many concerns in their stage 1 and stage 2 complaint correspondence. In summary the Council accepted it could have communicated better with X. It apologised for this, but considered its other actions were justified.
21. X were not satisfied with the Council’s response and complained to us.

Proposed outcomes

22. I asked Z what outcomes they sought in bringing X’s complaint to us. Z said they understood we could not quash the Council’s decision although confident, given the opportunity, they could have successfully challenged it in the courts. Being denied that legal route, they had complained to the Council but it had neither put X back in the position they would have been in nor offered appropriate compensation. Z said the Council should now effectively withdraw or change the comments and views it had expressed in responding to the complaint. For example, Z asked that the Council:

• accept the circumstances of the case meant using Section 228 was wholly inappropriate and the process fundamentally flawed, and the Section 228 notice was not placed in the private street it said was to be adopted;
• acknowledge it had collaborated with the developer and the Section 228 process had benefited the developer and so withdraw comments about the developer not gaining an advantage from the use of Section 228;
• acknowledge it had not complied with the 2014 Regulations; and
• withdraw comments about not contacting X because of an ‘oversight’, and the request for contact being made ‘some time in the past’.

23. Z also sought specific apologies from the Council for its actions generally; its inadequate complaint responses; and failing to engage with X.
24. Z wanted clear and full explanations from the Council about its conduct; why the works on X’s car park were ‘street works’; and why it adopted the development access road when it needed further works.
25. Z also wanted the Council to explore all available avenues to put X in the position they would have been in if it had correctly followed an appropriate adoption process. And, if that was not possible, to pay compensation that reflected:

• the gravity of the Council’s flawed decision making and failure to recognise this in responding to X’s complaint;
• its conduct had deprived X of their right to challenge the decision in the courts leaving the complaints procedure as their only avenue but then dealing with their complaint with “indifference”;
• the severe injustice and prejudice caused by the interference with X’s legal interests in their land and the loss of a commercial opportunity as their land provided access to the development site; and
• X’s legal costs, which should be reimbursed.

Consideration

26. It was clear X disputed the actions the Council had taken, which led to it adopting their land as public highway. And, at some points, X could have done more themselves to protect their own interests – for example erecting a Section 31 notice or seeking to prevent the developer doing work on their land. Z said it was wrong as a matter of law to refer to section 31, which was irrelevant to X’s case. Z said the developer’s trespass on X’s land was not foreseeable and X had written to the developer and asked for their land to be reinstated. Z also said X were now engaged in litigation with the developer. Z said the Council had been put on notice of X’s land interest and X had a legitimate expectation the Council would keep them informed. Z said X could not reasonably have been expected to do more. I recognise Z, and X, took steps, however, X had responsibility for protecting their interests, which interests included owning land providing access to a third party’s development.
27. Whether rightly or wrongly the Council had adopted the highway. As the adoption could not be questioned, I considered there was no useful purpose in investigating the Council’s Section 228 process. To reach a view on whether the Council correctly placed the Section 228 notice or works in Mr and Mrs X’s car park were ‘street works’, would have effectively involved questioning adoption of the road and or matters of legal interpretation.
28. Similarly, Z and the Council had different interpretations of the 2014 Regulations. Where there is a disputed legal point, that is a matter for the courts to decide and not the Ombudsman.
29. Of the outcomes sought by Z for X, a number were about getting the Council to express different views to those it had previously given. The Council is as entitled to its views as Z and X are to theirs. I considered there was no useful purpose in continuing an investigation to try to get the Council to say something different and which was satisfactory to Z and X.
30. The key outcome sought by X was the Council put them back in the position they were in before it adopted the highway or they received compensation.
31. The Council has powers under the Highways Act 1980 to unadopt and to stop up highways. In the former case, the road remains in public use as a highway, but the public are no longer liable to maintain it. This would not put X back to the position they were in. The Council’s powers to stop up public highways are based on them being ‘unnecessary’. As new homes and other buildings on the development site are occupied, the Council could not realistically make a case for the highway not being needed for public use. While these were decisions for the Council to make, I saw no useful purpose in pursuing the matter with it.
32. This left compensation as the substantive outcome for any investigation leading to a finding of fault causing injustice
33. Z said Section 228 was wholly inappropriate. However, it is a ‘highway adoption power’ and the Council was adopting the development access road as highway maintainable at public expense. Section 228 does not say it cannot be used where the landowner is known.
34. The Council accepted it did not engage with X after Z had asked that it do so. However, if the Council had contacted X I could not now know what might have happened. Z appeared confident the legal process would have meant the Council would not have adopted the access road under Section 228. But the Council could refer objections to the Magistrates’ Court, which could have ordered the adoption without compensating X.
35. Z did not put a figure on what X considered appropriate compensation. They referred to a loss of commercial opportunity. With a ‘ransom strip’ that commercial loss could be considerable. Section 228 does not make provision for the Council as local highway authority to be responsible for compensating a landowner when adopting a road.
36. The commercial opportunity was a matter for Mr and Mrs X to have protected. It is not my role to propose compensation for lost commercial opportunities.
37. I did not consider continuing an investigation into Mr and Mrs X’s complaint against the Council would provide them with the substantive outcome they seek for their land to no longer be ‘adopted’ highway or significant compensation for, among other matters, their lost commercial opportunity. So, I discontinued my investigation.

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Final decision

38. I discontinued my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman