Summary: We shall not investigate Mrs X’s complaint about matters related to whether she put rocks on the adopted highway. It is for the courts, not the Ombudsman, to decide whether the land in question is part of the adopted highway. In that context, Mrs X’s concerns about the Council’s handling of the matter are not significant enough in themselves to investigate.

The complaint

1. Mrs X complains about the Council’s actions concerning her placing some rocks on land outside her property. The Council said the land was part of the adopted highway so Mrs X had broken the law by putting the rocks there and must remove them. Mrs X says the Council did not deal properly with her communications about the matter. She says this caused stress to her and her mother, they feel harassed, bullied and discriminated against and feel unable to enjoy the property. Mrs X also says she lost wages, incurred travel costs and the cost of having the rocks removed, and went to time and trouble dealing with the matter.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

4. I considered information provided by the complainant. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Outside Mrs X’s garden hedge is a grassed area, then a pavement, then a road. Mrs X put rocks on the grassed area to protect her property from vehicles leaving the road. She did so believing she owned the land and it was not part of the adopted highway. The Council says the adopted highway includes the road, pavement and this grassed area. Mrs X and the Council disagree about whether there is enough evidence the area is adopted.
6. Disputes about whether the adopted highway includes land alongside the road or footway are not unusual. Only the courts can decide definitively if land is part of the adopted highway. The Council cannot force Mrs X to remove items from the land without a court order. If Mrs X is not satisfied the land is adopted, it is open to her to place items on the land and see if the Council takes court action. Any court action would be likely to involve the Council disclosing all its evidence for claiming the land was adopted. Mrs X could therefore consider it. Mrs X could argue her case in court and the court would decide.
7. The central point here, leading to Mrs X’s dissatisfaction with the Council and her complaint to us about how the Council handled the matter, is whether the land is adopted. It is not for the Ombudsman to rule on that where the point is disputed.
8. In that context, I have considered Mrs X’s points about how the Council handled matters.
9. Mrs X says the Council did not give clear, consistent evidence the land is adopted and it contradicted itself about particular maps and legislation. The Council says it believes the information it supplied shows the area is adopted. Mrs X wants her complaint to result in the Council providing evidence showing the land is adopted or, if the evidence does not show that, she wants the Ombudsman to recommend the Council pay her to recognise her inconvenience, costs and stress.
10. The precise extent of an adopted highway is not necessarily always clear from definitive maps due to their scale. Nor is it necessarily always clear on property ownership documents. Just because someone other than the Council owns land does not preclude the land being adopted. Land can become part of a highway in various ways. Investigation by us to consider the evidence the Council gave Mrs X, and what more evidence it might produce for its position, might well not enable us to reach a clear enough view about whether the Council had substantiated its claim. This is especially so as it is for the courts, not the Ombudsman, to decide the adopted highway’s extent. Also, even if we were to investigate and conclude the Council had not produced enough evidence for its claim (and I am not saying we would decide that), we would only be likely to recommend the Council reconsider the matter. We would not tell the Council what its new decision should be about whether the land had been adopted. For these reasons it is not proportionate to investigate whether the Council has properly evidenced its claim.
11. Mrs X says the way the Council served notice to remove the rocks and then corresponded with her caused distress and inconvenience to her and her mother. That is not in itself a significant enough injustice for us to investigate.
12. Mrs X says the Council did not tell her how she could pursue the matter, for example by seeking a modification order to change the definitive map, so she had to spend time researching this. I do not consider that significant enough in itself to investigate, especially as this point comes back in part to whether the land should be considered adopted, which is not for the Ombudsman to decide.
13. Mrs X says the Council singled her out and did not take the same action regarding nearby properties. She is dissatisfied the Council said it could not give details of any actions concerning other people. I understand Mrs X’s point. However, the main source of Mrs X’s concern is the Council’s action against her. Whatever the Council might or might not have done regarding other residents does not in itself directly cause Mrs X a significant enough injustice to warrant the Ombudsman investigating. Mrs X can go to the Information Commissioner if she believes the Council has wrongly withheld any information.
14. I recognise Mrs X is dissatisfied with how the Council handled the matter, separate from her disagreement about whether the land is adopted. However, for the reasons given, it would be disproportionate to investigate the handling of the matter when those concerns relate to a central point - whether the Council is correct the land is adopted - that the Ombudsman will not decide.

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Final decision

15. We will not investigate Mrs X’s complaint because it fundamentally relates to whether the land is adopted, which it is not appropriate for us to decide. In that context, Mrs X’s concerns about the Council’s handling of the matter are not significant enough to investigate.

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Investigator's decision on behalf of the Ombudsman