Summary: We will not investigate this complaint about the Council’s refusal to take formal enforcement action for unauthorised works to the public highway. This is because there is not enough evidence of fault by the Council or to show its actions caused Mrs X significant injustice.

The complaint

1. Mrs X complains the Council failed to take action against a third party for carrying out unauthorised works to land which formed part of the public highway. She says this caused distress and uncertainty for local residents, including herself. She is also unhappy with the Council’s handling of her complaints about the matter.
2. Mrs X wants the Council to take action to safeguard the land from further works and improve its practices so this does not happen again.

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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
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

4. I considered information provided by Mrs X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils which are local highway authorities have a duty to assert and protect public rights over land which forms part of the public highway. The Highways Act 1980 provides a mechanism for members of the public to ask the local highway authority to comply with its duty and, if they fail to do so, they may seek enforcement through the courts.
7. The Council accepts it is the relevant local highway authority for the land and that the land in question formed part of the public highway when the work began. However, it explained to Mrs X that the owner of the land had applied to remove highway rights over the land and while the court considered that application it would not pursue formal enforcement action.
8. The Council’s decision was a matter of professional judgement and I have found no grounds for us to criticise it.
9. The Council confirms the court has now accepted the landowner’s application to remove highway rights over the land and they are therefore free to work on or develop it as if it had never been part of the public highway. We could not therefore say the Council’s refusal to take formal enforcement action caused Mrs X significant injustice.
10. Mrs X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

11. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council or to show the Council’s actions caused Mrs X significant injustice.

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Investigator's decision on behalf of the Ombudsman