Summary: We found the Council did not act with fault in refusing to use its powers to stop maintaining a public road next to Mr X’s property.

The complaint

1. Mr X said the Council failed to both properly consider or give valid reasons for refusing his request to remove public rights from a road (‘the Road’). The Road runs between land owned by the company Mr X represents (‘the Company’). Mr X said the Council’s refusal to act was hampering the Company’s development plans. Mr X wanted the Council to visit the site and then reconsider his request giving proper reasons for its decision.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have:

• considered Mr X’s written complaint;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments on the complaint;
• shared the Council’s comments with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered the comments received before making a final decision.

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What I found

Background

6. Most public roads are maintained at public expense by councils that are ‘local highway authorities’ (‘LHAs’). When development takes place that includes a new road, the landowner will usually want the LHA to take responsibility for its future maintenance. The LHA will want to ensure a road is properly built before it agrees to maintain it. So, the owner and LHA will usually complete a ‘section 38 agreement’. This is a legal agreement that sets out what must happen for the LHA to become responsible for maintaining the road. When the LHA accepts responsibility under a section 38 agreement it ‘adopts’ the road. The road then becomes a public road maintainable at the public expense. The law gives the LHA ‘ownership’ of the road and the subsoil needed, for example, to provide for its drainage. When people buy new homes and buildings, they will normally check the developer has completed a section 38 agreement with the LHA for maintenance of adjoining roads.
7. Companies that provide services to homes and buildings, for example, gas, water and telecommunications, are known as statutory undertakers (‘SUs’). They will lay their pipes, cables and other equipment under and within the boundaries of public roads. They also have legal rights that allow them work on roads when they need to maintain, improve and replace their equipment.
8. The law gives LHAs powers to apply to the courts to either stop maintaining a road or to ‘stop it up’ because it is “unnecessary”. People have rights to object to the applications and to speak at the court hearing. If the courts declare a road no longer needs to be maintained at the public expense, it remains a public road. If the courts ‘stop up’ a road, it is no longer a public road and people do not have a right to use it. People may ask their LHA to use their power to apply to the courts to ‘stop up’ a road. The LHA may ask the person wanting the road stopped up to meet its reasonable costs in making an application.
9. Once a road is ‘stopped up’, the LHA’s legal ownership ends too. Legal rules then control who will own the former road land. For example, it may the person that built the road and completed a section 38 agreement with the LHA. And sometimes people owning land on either side of the former road may each claim to own half its width up the centre point. The law protects the rights of SUs with equipment in former roads.

What happened

10. The Council is an LHA. The Road, which is a cul de sac, was built as part of a development about 20 years ago. The owner developer completed a section 38 agreement with the Council, which later ‘adopted’ the Road. The Company has property on both sides and along the full-length of the Road. The Road gives access to the Company’s property. Heavy goods vehicles (HGVs) use the Road to access the Company’s property. Parking along the Road caused problems for HGVs when turning in and out of the Company’s access. A few years ago, the Company asked for, and the Council made, a traffic order restricting parking along part of the Road.
11. In 2021, the Company asked the Council for information about how to ‘readopt’ the Road and how much it would cost. The Council said the Company should check who owned the Road and provided the name of the original developer owner from the section 38 agreement. The Council also said the Company would “…have to inform all the statutory undertakers if they do make it private”. The Company replied that its directors owned the land on both sides of the Road. (The Council disputes the Company’s ownership of the land adjoining the Road. The Council also says it now holds a Land Registry search showing the Road is owned by the original 38 section owner developer. The Company also refers to Land Registry information in support of its position.) The Company also referred to the original ‘adoption’ of the Road and said it wanted to investigate ‘re-adopting’ it.
12. The Council replied that it did not consider it appropriate to unadopt the Road as it was still necessary for public use. The Company questioned the response saying the Road was a dead end giving access only to its property. The Company asked if it could appeal or ‘get a more in-depth explanation’ of the decision.
13. The Council’s second reply referred to Internet maps that showed the Road in public use “by the number of vehicles parked, accessing [the Company’s] premises and going to work”. The Council also referred to the Road only being adopted about 20 years ago, that it had streetlights and drainage, and SU’s equipment. The Council said all these points contributed to keeping the Road maintainable at public expense. The Council also signposted the Company to its complaints procedure if it wished to appeal the decision.
14. The Company contacted the Council’s complaints team and said it wished the challenge the decision the Road needed “to remain a public highway”. The Company repeated its directors and shareholders owned the adjoining land accessed from the Road. The Company also said the Road was only legitimately used by its staff, customers and suppliers. And what little other use took place was not necessary nor beneficial to the wider public, for example, illicit meetings at night when it was fairly dark and quiet. The Company said Internet images used by the Council were not recent and did not reflect current use of the Road or provide a fair and honest assessment of the situation.
15. The Council decided it could not address the Company’s concerns through its complaints procedure but asked the highways team to review its decision. The Council then said, in summary, the legal test was whether the Road was “no longer required”. The Council also said SUs would have equipment in the Road and “would undoubtedly object to the stopping up”. The Council could not therefore show the Road was unnecessary and so meet the legal test. The Council recognised the Company disagreed with the decision but there was no evidence it was flawed. The Council signposted the Company to the Ombudsman.
16. The Company replied that it knew there were services under the Road as they served its property, and it would not prevent access to them. The Company also said the Council was not maintaining the Road, which needed resurfacing, and as a dead end it would be a low maintenance priority. The Company said “unadopting” the Road would allow it to better use its land and remain in the area. The Company again asked the Council to reconsider. In reply, the Council again referred the Company to the Ombudsman.

The Council’s responses to the Ombudsman

17. The Council’s responses to the Ombudsman included a ‘note’ about its reasons for refusing the Company’s request and a later revision of that note. The Council’s notes said the Company had asked for the Road to be ‘unadopted’, which meant making it no longer maintainable at the public expense. However, as the Company had also referred to the ‘return of the land’, the Council thought the Company wanted the Road ‘stopped up’.
18. The Council’s original note listed five matters it said it had considered in refusing the Company’s request:

• the ability to demonstrate the Road was unnecessary and its use;
• whether the Road would be needed to help future development;
• the transfer of SUs equipment from public to private;
• highway assets, for example, streetlights and road drainage; and
• the legal stopping up procedure.

(The revised note did not include the fifth bullet point. The Council also told us the second bullet point was not relevant to its decision about whether the Road was ‘necessary’.)

19. On the need for the Road, the Council said it had no data about its use and COVID-19 restrictions meant site visits to assess current use were not possible. But assessing use when COVID-19 restrictions were in place would not have been fair. Internet images showed the main use of the Road was for access and parking and so there was passing and repassing. It accepted most use could be by and linked to the Company, but the Company had admitted to other use in its emails. The Company had also asked for parking controls six years earlier which provided evidence of public use
20. The Council said four SUs had equipment in the Road and would possibly object if it became private. It also said surface water drainage and electricity for streetlights along the Road would need to be separated from its system if the Road was private. The Council said there were “several reasons for not allowing [the Road] to be stopped up”. It was “unheard of” to stop up an adopted metalled (hard surfaced) road. Proving a road was not necessary was not straightforward and its legal team suggested there was not enough evidence to succeed at court. It had therefore refused the Company’s request. However, it would meet Mr X if he would find that helpful.

Consideration

21. I recognise the Council has its own priorities and these would not include the Company’s concerns about use of the Road and the best layout for its property. I also recognise the Company contacted the Council while COVID-19 restrictions continued. However, local residents and businesses are entitled to ask their local councils for information and to receive clear and substantive responses. It is also easy to forget that many people do not have the specialist knowledge and expertise available to councils that provide public services. So, while people walk on pavements and cycle and or drive on public roads, few will be familiar with highway law and procedure.
22. Here, the Company made an enquiry of the Council, the intent and purpose of which the Council recognised was not clear (see paragraph 17). However, the Council did not seek clarification from the Company. Rather, the Council’s responses continued and contributed to the lack of clarity by sometimes referring to ‘stopping up’ (see paragraph 15). And, when the Council first responded to the Company’s request it provided no reasons to explain the how and why of its refusal decision. It was reasonably foreseeable the Company would find the refusal perplexing.
23. Unfortunately, matters escalated. This will have been frustrating for the Company. And some time now taken to address the matter, might have been avoided. For example, if the Council had sooner explained its decision; outlined the legal procedure; and commented on the potential costs of dealing with SUs equipment. Indeed, the Company had asked about costs (see paragraph 11).
24. However, whether the Company may have wanted the Road ‘unadopted’ or ‘stopped up’, it was for the Council’s to decide whether to use its discretion and start the relevant legal procedure. In its second and third responses to the Company, the Council did provide reasons for its decision (see paragraphs 13 and 15). And, in responding to the Ombudsman, the Council further explained its reasons for not exercising its discretion. I recognise the Company may likely continue to disagree with what the Council has said. But I have no role in arbitrating on any differing views about the ‘need’ for the Road and its maintenance at public expense.
25. The Council’s communication with the Company could, at the start, have been clearer and more helpful. However, while not accepted by the Company, the Council did give relevant reasons for its decision, I do not therefore find it acted with fault in refusing to exercise its discretion.

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Final decision

26. I completed my investigation finding the Council was not at fault in refusing the Company’s request.

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Investigator's decision on behalf of the Ombudsman