Summary: There is no evidence of delay by the Council in accepting a form about highways and placing it on the public register. The law requires the Council to publish the form as soon as reasonably practicable and it was not unreasonable for the Council to get legal advice before doing so.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council delayed accepting a CA16 form and placing it on the public register.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I read the papers sent by Mr B and discussed the complaint with him.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. I gave the Council and Mr B the opportunity to comment on my draft decision.

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What I found

Key facts

7. The CA16 form is used by landowners who wish to make any of the following in relation to their land:
• a 'landowner statement' under Section 15A(1) of the Commons Act 2006 for town and village green purposes;
• a statement and/or declaration under section 31(6) of the Highways Act 1980 for presumed dedication of highways purposes.
8. The government guidance for completing the form says the application, must be made to the correct authority e.g. the London borough. The guidance explains what applicants need to do to make a valid application, including the correct fee.
9. Section 31 (6) of the Highways Act 1980 says that ‘an owner may at any time deposit with the Council a map of the land and a statement’. The act says that the appropriate Council should then take the prescribed steps in relation to the map and declaration.
10. So section 31(6C) imposes a duty on a council to take the prescribed steps. The prescribed steps are set out in the Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013
11. Regulation 4.1 says that as soon as practicable after receiving an application, the Council must:
• send an acknowledgement of receipt to the applicant and publicise notice of receipt of the application.
12. The Council must then:
• publish notice of the application on the authority's website;
• serve notice of the application by email on any person who has previously asked to be informed of all applications and who has given the authority an email address for that purpose.
13. Mr B’s company put in a CA16 form to the Council on 26 November 2018.
14. The company completed Part B of the form, the Statement under section 31 (6) of the Highways Act 1980. This said that ‘the company is the owner of the private land that is not maintained at public expense edged in red on the accompanying plan’. It also said there was an area dedicated as a bridleway only and an area with no public rights of way over it.
15. During December 2018 Mr B started Judicial Review proceedings against the Council in relation to highway matters. The Council received legal advice about the CA16 form on 21 December 2018.
16. Mr B made a Judicial Review application to the court on 4 January 2019 and he withdrew it on 28 January 2019.
17. Mr B made an official complaint on 28 January 2019 and the Council acknowledged it on 6 February.
18. The legal advice on the CA16 form was resent to the Council on 1 February 2019.
19. The Council wrote to Mr B on 4 March 2019 to say it would not progress the matter further, i.e. it would not publish the CA16 form. Mr B emailed back on 4 March to say that he believed the Council’s reasons for not publishing the CA16 were incorrect. Mr B complained to the Ombudsman at this point.
20. The Council’s highway officer sent a draft notice to the legal advisor on 7 March 2019 and received a reply on 8 March.
21. The Council published the CA16 form on its website on 11 March 2019.

My analysis

22. The Council has published the CA16 form on its website. So, it has complied with the legislation.
23. Mr B complains about the delay. It took 3 and a half months for the Council to publish the form on its website. The regulations say that notice of receipt of the application should be published as soon as reasonably practicable, but gives no timescale for publishing notice of the application.
24. I asked the Council why it took over 3 months. The Council said that it sought legal advice and I have seen copies of emails from officers asking for and receiving legal advice between December 2018 and March 2019.
25. Mr B argues the Council did not need to seek advice. He says the procedure is clear that the Council should publish the information on its website. He also considers that the reason the Council took legal advice was more likely to be related to a wider dispute and judicial review claim with the Council, which he considers a separate legal matter.
26. On balance, I can find no evidence of fault by the Council. It was a complex situation and officers wanted to ensure that they were carrying out the legally correct steps, especially because of the Judicial Review proceedings. I do not consider the CA16 form could be considered entirely separate as it was in the Judicial Review annex papers, although from the papers I have seen was not the subject of the Judicial Review itself.
27. Ideally the Council would have published the notice more quickly as I can see Mr B and his associates had to chase the matter up through the complaints procedure. The Council told Mr B it would not publish the notice a week before it published it, which would have been frustrating. Mr B complains about the Council’s complaints procedure and that the notice was only published as a result of his complaint to the Ombudsman. I note his concerns, but the Council is entitled to change its view, which it did after getting legal advice on 7 March 2019.
28. Mr B complains that the Council refused to consider his complaint at stage 2 of its complaints procedure in March 2019. Mr B wanted his complaint taken to stage 2 of the complaints process in order to get the CA16 form published. The Council published the CA16 form, which was the outcome he wanted so I do not consider it a good use of public money to investigate the Council’s internal complaints process when the matter complained about was resolved after the Council changed its view.

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Final decision

29. I have completed my investigation of the complaint. This complaint about delay is not upheld.

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Investigator's decision on behalf of the Ombudsman