Summary: We will not investigate Mr X’s complaint about unlawful resurfacing of a lane near his to his home. There is not enough evidence of fault by the Council to justify our involvement.

The complaint

1. Mr X complained to the Council about the unlawful resurfacing of a lane close to his home. Mr X says the materials used were unsafe posing a risk to safety and affecting his ability to use the lane safely for walking. Mr X says the Council has not upheld its responsibility to protect and look after the lane. Mr X wants the Council to use its legal powers and that of the court to bring to account the person responsible for the resurfacing work.

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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
• 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

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

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Assessment

5. Mr X complained to the Council about unlawful resurfacing of a lane close to his home and highlighted the following issues:

• Fly tipping on the lane.
• Unsafe working practices used.
• Widening of the lane.
• Section 278 Agreement not obtained for the work.
• Lack of action from the Council.

6. The Council responded to Mr X and said:

• The Highways and Countryside services visited the site and found the threshold for legal action was not met.
• Council staff had no evidence of working practices used on the lane.
• The highway width remained between the hedges on either side.
• Prosecution was not an effective use of the limited resources.
• Decisions to take enforcement action would be on a case-by-case basis.

7. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
8. In this case, the Council is the highway authority, and it must decide when thresholds are met for action to be taken. It completed a site visit to look at and reviewed the issues raised by Mr X. It sought legal advice, finding once works had been completed its statutory powers were limited. It explained to Mr X that the cost of potential action outweighed any benefit to the public.
9. Based on the evidence I have seen, the Council has offered a proportionate response to Mr X’s complaint. Therefore, there is not enough evidence of fault in the Council’s actions to warrant an investigation.

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Final decision

10. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s actions to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman