Summary: Mr X complained the Council decided with insufficient and incorrect information that the forecourt of his premises is highway maintainable at public expense; improperly installed bollards around the area and corrected other similar issues on the street but not his property. We find the Council was at fault for not initially disclosing some information to Mr X. This meant Mr X was not aware of the status of the forecourt before he purchased the premises. The Council has now updated its processes and removed one of the bollards. The agreed to apologise.

The complaint

1. The complainant, Mr X, complains the Council:
1. decided with insufficient and incorrect information that the forecourt of his premises is highway maintainable at public expense (HMPE);
2. improperly installed bollards around the area; and
3. has corrected other HMPE area issues on the same street but not his property.
2. Mr X said this has caused his significant distress. He said it has also restricted his ability to advertise on the forecourt of his premises.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 considered all the information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

7. The Council, acting as Highways Authority, is responsible for maintaining a highway that is maintainable at the public expense (Highways Act 1980, section 41).
8. Section 36 of the Highways Act 1980 states all such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable for the purposes of this Act.
9. Section 31 of the Highways Act 1980 states where a way over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

What did happen?

10. Mr X owns an estate agent premises. He contacted the Council in January 2023. He asked the Council why it had recently put bollards in place outside the premises. This was following some complaints he had received from residents who said the bollards were an obstruction for wheelchair users, people who have mobility scooters and pushchairs. He asked for information about the forecourt of his premises.
11. The Council wrote to Mr X in the same month. It said:
• the road was a historic adoption;
• the highways register indicates the road was HMPE in 1952;
• in reference to section 31 of the Highways Act 1990- this provision simplifies the common law rule under which dedication can be inferred from user by stating that certain assumptions prevail unless the contrary is proved. Where a way has been actually enjoyed by the public as a right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence to the contrary; and
• the status of the area would have been set out when the property was purchased and would have been revealed in any local land charges search.
12. Mr X told the Council he had checked all the documents he had relating to the premises and no HMPE notice was included. He also said the local authority searches did not reveal any adoption agreement affecting the forecourt. This was supported by Mr X’s solicitor who acted on his behalf in 2015 and 2018 when purchasing the premises. The Council agreed to refer this to is local land charges team.
13. The Council contacted the team regarding processes that were in place in 2015 and 2018. It said the only explanation for this not being identified at the time was human error. It said based on the maps used the use of paper-based information had made the area unclear when all markings were pen to paper. But it said since this the processes have been updated to a digital format.
14. Mr X was unhappy with the Council’s response. He said the historical records were inaccurate.
15. The Council’s final complaints response said records identified the forecourt as HMPE. But said during a programmed inspection, it noticed vehicles on this section of HMPE which made it difficult to detect any defects. The bollards were therefore put in place. But it said it would investigate and look to possibly discharge the area from HMPE status.

Analysis

16. In response to our enquiries the Council said it has completed its investigation. It provided us with a copy of the historic plan confirming the land is HMPE. This is a decision for the Council to take. This decision was taken a long time ago. We could not now go back and look at the reasons why it was recorded as HMPE.
17. However, even though I cannot look back at that decision, there was an issue with the searches carried out in 2015 and 2018. This is detailed in paragraph 13. They did not reveal any adoption agreements affecting the forecourt. The Council has looked back at this information and said there was bleeding ink across the boundary lines on the paper plan. The Council has accepted that this had caused it to initially miss this information.
18. The Council said processes in place have been updated to a more digital format allowing for accuracy. But because of this Mr X was not aware of the HMPE status of the forecourt when he purchased the premises. This has caused him significant stress.
19. The Council is of the view the area should remain HMPE. There is a process where Mr X can apply to the Department for Transport to have the HMPE for the forecourt extinguished. The Council has advised Mr X should contact it to see if it would support an application. But the Council has indicated it is likely to oppose the application.
20. Regarding installing the bollards on the forecourt, the Council carried out inspections at the forecourt. In December 2022 it was unable to inspect because of a parked vehicle. It decided to install bollards. Mr X said the Council has placed one of the bollards close to the ramp which is used by disabled clients to access the premises. He said he has had complaints from residents who find the bollards an obstruction.
21. The Council has evidenced it considered whether the bollards in place cause obstruction to disabled access. But it said it has no concerns over disabled access to the shops or use of the footways. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. It is not our role to determine the appropriate position of the bollards.
22. The fault has been identified and the Council said processes in place had been updated to a more digital format. We cannot now put Mr X back in the position he would have been in had the fault not occurred. But we have looked at how he has been affected. The Council has looked into this and removed the bollard closest to the entrance of his property. I understand Mr X is unhappy and wants all the bollards removed. But it is not for us to determine where the bollards should be placed.
23. Mr X said the Council has corrected other HMPE issues on the same street but not his property. I will not pursue this further. This is because each case needs to be considered on its own merits.

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Agreed action

24. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to apologise to Mr X for the fault identified in this statement.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman