Summary: We will not investigate Miss Y’s complaint about the Council’s refusal to adopt a private road. There is not enough evidence of fault by the Council or significant personal injustice to Miss Y to justify investigating.

The complaint

1. Miss Y lives in a property on a road that is not part of the Council’s adopted highway.
2. Miss Y complains the Council refused to adopt the private road because no other body could adopt the culverted watercourse below the road. Miss Y says the Council failed to consider the developer’s insolvency and the wider public use of the road before making its decision. She says the Council failed to exercise discretion. She says residents are expected to satisfy an impossible condition because no other body can adopt the culverted watercourse.
3. Miss Y also complains the Council engaged in the adoption agreement process under Section 38 of the Highways Act 1980, but failed to explain why such an agreement was no longer possible.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

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

5. 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)

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How I considered this complaint

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

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My assessment

8. 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.
9. In early 2026, the Council replied to Miss Y’s complaint. The Council considered evidence about the road, including the insolvency of the developer, the properties the road serves, and that fact there was no other third party that could adopt the culverted watercourse underneath the site. It considered the relevant law and guidance on highway adoptions. Although it had become clear that no third party was able to adopt or take responsibility for the watercourse, this did not mean that ownership or responsibility for the road’s maintenance fell to the Council by default. Officers advised Miss Y that the Highways Act 1980 (“the Act”) 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 Miss Y’s request and give its reasons for its decision, not to agree the request.
10. The Council took the view that the road was there to provide access to residents, but it was not a route regularly and continuously used by the wider public. Officers considered whether adoption of the road 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. It refused to adopt the road as highway.
11. Officers considered the information about the road. It considered and applied the relevant law and guidance when making the decision that the Council should not adopt it as highway. That was a professional judgement officers were entitled to make. It said other previously adopted highway with culverted watercourses beneath would not affect its decision and gave clear reasons for this. There is not enough evidence of fault in the Council’s decision-making process to justify us investigating. I recognise Miss Y disagrees with the Council’s decision, but this is not evidence of fault by the Council.
12. Section 38 of the Act gives local authorities the powers to enter into an agreement to adopt and thereafter maintain at public expense a newly constructed road. The ‘Section 38 Agreement’ is made between a developer and the local authority. Miss Y says the Council engaged in the Section 38 adoption process. But, in its complaint response, the Council said there was no Section 38 agreement with the developer at the time the road was constructed or when the developer sold the properties. This meant the Council was not required to provide the services associated with adopted highways. The developer’s insolvency does not change this. There is not enough evidence of fault by the Council to justify investigating.
13. Even if there were fault by the Council here, we will not investigate. Miss Y chose to buy the property on an unadopted highway. The Council told Miss Y the conveyancing process should have led to Miss Y being advised about the lack of a Section 38 agreement. There was no guarantee the Council would agree to adopt the road as highway in future. The risks connected with the absence of a Section 38 agreement are all impacts on Miss Y which she bought into when she chose to buy the house. There is insufficient significant personal injustice stemming directly from the Council’s action here to justify us investigating. So, we will not investigate.

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Final decision

14. We will not investigate Miss Y’s complaint about the Council’s refusal to adopt a private road. There is not enough evidence of fault by the Council or significant personal injustice to Miss Y to justify investigating.

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Investigator's decision on behalf of the Ombudsman