Summary: We will not investigate Mr X’s complaint about the Council’s decision and decision-making process when refusing to adopt an alley providing access to his and others’ properties. There is not enough evidence of fault by the Council to warrant us investigating. There is insufficient significant personal injustice caused to Mr X by the Council’s decision to justify an investigation. We also cannot achieve the outcome Mr X seeks.

The complaint

1. Mr X lives in a property accessed by an alleyway between properties fronting a main road. The access is not part of the Council’s adopted highway. Mr X complains the Council has:
1. wrongly and unfairly refused to adopt the alleyway as part of the highway;
2. failed to consider relevant information or properly interpret and apply the law and official guidance when making its decision.
2. Mr X says the alley needs to be repaired and there is no streetlight. He says this creates a safety issue for him and neighbours. Mr X says the Council decision ignores public safety and well-being and officers have failed to provide a safe and practical solution to the problem. He finds the access unpleasant and considers it affects the value of his property.
3. Mr X wants the Council to adopt the alleyway as highway, resurface it, install a streetlight, and maintain and clean it in future.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

6. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
8. In response to Mr X’s complaint, the Council considered evidence about the alleyway, including ownership, the properties it serves, and the relevant law and guidance on highway adoptions. That there is no recorded owner of the access does not mean that ownership or responsibility for its maintenance falls to the Council by default. Officers advised Mr X that the Highways Act 1980 grants the Council powers to adopt land as highway land, but that it does not place a duty on it to do so. The duty on the Council was to consider Mr X’s request and give its reasons for its decision, not to agree the request.
9. Officers took the view that the alleyway was there to provide access to residents and a nearby business, but was not a route regularly and continuously used by the wider public. Officers considered whether adoption of the alleyway would be in the wider public interest. The test in law and guidance is whether bringing the access to an adoptable standard, and continuing to maintain it, would be a use of resources providing sufficient utility and wider benefit to the public. Officers decided the test was not met and declined to adopt the alleyway as highway.
10. Officers gathered information about the alleyway and considered and applied the relevant law and guidance when making their decision that the Council should not adopt it as highway. That was a professional judgement officers they were entitled to make. There is not enough evidence of fault in the Council’s decision-making process here to justify us going behind its decision and investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Even if there has been fault by the Council here, we will not investigate. Mr X chose to buy the property with an unadopted access and no registered owner several years ago. There was no guarantee the Council would agree to adopt the access as highway in future. The risk that the Council would not adopt it, and the situation of his property’s access not being adopted which he now finds unpleasant and unsafe, are all impacts on him which he bought into when he chose to buy the house. One of Mr X’s claimed injustices is the impact of the unadopted access on the value of his property. But Mr X bought it with that unadopted access, which would have been one of the factors in determining the property’s value. We note Mr X says a neighbour has a sick child and the condition of the alleyway makes access for ambulances unsafe. There is no indication the alley would stop access by an ambulance or other emergency vehicle. But in any event, this is a claimed injustice relating to a neighbour, not a personal injustice to Mr X or his family. There is insufficient significant personal injustice stemming directly from the Council’s action or inaction here to justify us investigating.
12. The outcome Mr X wants from his complaint is for us to require the Council to adopt the alleyway as highway, repair it, install a streetlight, and continue to maintain and clean it. We cannot order councils to take those actions. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.
13. In Mr X’s complaint to us, he provides historical information about the alleyway land and its use as a public right of way for many years. Mr X may wish to consider applying to the Council to add the alleyway to the area’s ‘Definitive Map’ of rights of way. This is known as a ‘Definitive Map Modification Order’ (DMMO). Confirmation of a route as a public right of way may affect the duties of a local authority to maintain it. Any member of the public can submit a DMMO, if they believe and have evidence a route missing from the map should be on it. Councils must publicise orders and if there are no public objections, an order is confirmed and the right of way is added. If it is opposed, councils must send the proposed order to the Planning Inspectorate for a decision. The Inspectorate’s involvement in the DMMO process, acting on behalf of a government minister, would provide a right of appeal for Mr X. This appeal right means any complaint to us about the DMMO process would fall outside our jurisdiction and we would not investigate.

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Final decision

14. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to warrant us investigating; and
• there is insufficient significant injustice directly caused to him by the matters complained of to justify us investigating; and
• we cannot achieve the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman