Summary: We will not investigate this complaint about the Council’s failure to take planning enforcement action over a highway left unadopted following planning approval in 1998. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mr X complained about the Council’s failure to ensure that a road was adopted as one of the planning conditions of an approval for a commercial estate in 1998. He says the Council missed a further opportunity to adopt the road in 2023 when new owners asked for this because they had no funds to meet the requirements. As a result he says that the road surface has deteriorated over past decades and the Council will not carry out repairs.

Back to top

The Ombudsman’s role and powers

2. 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; or
• we could not add to any previous investigation by the organisation.
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

3. I considered the information provided by the complainant and the Council’s response.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Mr X says the Council has failed to take action to ensure a road through an industrial site in his area is adopted to highway standards. The road surface has deteriorated over the past decades since the plans were approved in 1998 and has not been maintained by the site owners. He says the Council should have used planning enforcement to ensure that a planning condition was used to secure adoption of the highway.
6. The plans were approved in 1998 and the Council told Mr X that although there was a condition that the road be brought up to adoption standards there is no evidence that this as not done at the time. The site owners did not sign a s.38 adoption agreement and they have shown no intention of having the highway adopted since then. In 2023 the owners created a shell company and its solicitors asked the Council to adopt the road because it had no funds to bring the road up to highway standards.
7. The Council refused to do this work at public expense and the company was subsequently liquidated. The land on which the road is sited passed into the custody of the Crown estate under ‘Bona Vacantia’ rules. Mr X says this was an opportunity to adopt the road which the Council should have acted upon.
8. The status of the road remained a private highway and the Council had no responsibility for maintenance. Private roads are not uncommon and there is no obligation to use public money to accept maintenance liability on a highway authority. The decision to transfer ownership of the highway to a company which was liquidated was a private matter by the owners in which the Council had no involvement. The crown estate is responsible now for the land but it has no highway maintenance duties. We have no jurisdiction to investigate these bodies.
9. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
10. I can see no evidence of fault in the Council’s actions. It could not take planning enforcement action to force the owners to sign a s.38 adoption agreement. It says there is evidence that the road was completed in the lates 1990’s but no agreement was entered into by the owners. Because the condition was met it was discharged.

Back to top

Final decision

11. We will not investigate this complaint about the Council’s failure to take planning enforcement action over a highway left unadopted following planning approval in 1998. There is insufficient evidence of fault which would warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman