Summary: Mr X complains the Council has wrongly served an enforcement notice on him to remove an obstruction on the highway causing distress. Mr X disputes whether the land is highway or not. We have ended our investigation into Mr X’s complaint as the courts are better placed to address the complaint and decide the status of the disputed land.

The complaint

1. I have called the complainant Mr X. He complains the Council has wrongly served an enforcement notice on him to remove railings placed on land outside his home to designate a private parking space. Mr X says he received planning permission from the Council to erect the railings and their removal is unfair causing distress and financial loss. Mr X disagrees with the Council’s view the land is adopted highway and complains it has failed to provide evidence of this.
2. Mr X considers the Council has made an error and wrongly relied on paper documents to show the extent of the highway. Mr X wants the Council to change its decision the land is highway. Mr X requests the Council alters its highways information map and compensate him for the stress and anxiety caused by the loss of the parking space and railings.

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The Ombudsman’s role and powers

3. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

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

4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered the information provided by Mr X and discussed the complaint with him. I considered the Council’s response to Mr X’s complaints about the matter.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Mr X’s property has limited parking, so he applied for planning permission to erect railings in front and at the side of his property to create a private parking space. The Council considered Mr X’s application and granted planning permission. Mr X created the parking area and installed the railings several years ago.
8. In early 2023 the Council contacted Mr X in response to a complaint he had obstructed the highway. The Council served Mr X with a notice under section 130A (1) of the Highways Act 1980 of a possible obstruction on the highway. The Council decided Mr X had not blocked the highway for several reasons explained in the notice. The reasons included the alleged obstruction being outside the extent of the public adopted footway. So, it would take no action.
9. In May 2023 the Council contacted Mr X about the section 130A (1) notice. The Council said it reviewed the digital highways information map (map) it uses to show the streets within its area that are public highway. The map indicated the area where Mr X placed his railings was not highway land when it issued the notice in early 2023. But on reviewing paper copies of the highway adoption plan it found historically an area of adopted footway by Mr X’s property not properly recorded on the map.
10. The Council said it had now updated the map to reflect the extent of the footway by Mr X’s property. So, the railings Mr X had erected were causing an obstruction to the highway and needed removing. The Council served Mr X with a Section 130A (1) notice requiring the railings to be removed.
11. Mr X complained to the Council about the notice. Mr X considered the Council’s evidence was incorrect and it failed to provide proof the land had been adopted as highway. Mr X want the Council to reinstate the land back to unadopted land. And sought compensation for the stress, anxiety, loss of parking space and costs of creating the parking area with railings due to the Council’s actions.

My assessment

12. The crux of Mr X’s complaint is the issue about the status of the land and whether it is adopted highway land or not. The Council has explained to Mr X why it considers the land is highway. Mr X disagrees with the Council’s evidence and considers he has information to show otherwise. But the status of the land is not an issue we can decide on so we cannot achieve the outcome Mr X is seeking. Rather it is a legal matter for the courts to decide on the evidence provided by both parties and what the status of the disputed land is. So, while I acknowledge the concerns Mr X has raised about the Council’s actions and decisions, the courts are better placed to consider the crux of the complaint. And to provide Mr X with the definitive ruling he needs on the status of the land used as his parking area.
13. If the courts decide that the land is unadopted then Mr X can ask the courts to consider whether his costs incurred should be refunded or he be compensated as part of his claim.

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Final decision

14. I am ending my investigation this complaint. This is because Mr X’s complaint is best suited to be addressed by the courts and I cannot achieve the outcome Mr X is seeking about the status of the land.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman