Summary: Mr B complains that the Council did not properly deal with the issue of access to commercial premises and leisure facilities and failed to deal with traffic problems and fly-tipping near his home. The Council was at fault in the way it dealt with an access track, did not conduct a traffic survey and did not respond properly to Mr B’s complaint. Mr B did not suffer any injustice.

The complaint

1. Mr B complains that the Council has not properly dealt with the issue of access to commercial premises and leisure facilities near a leisure facility because it:

• Removed a gate at the end of his road.
• Built a road between the end of his road and the leisure facility.

Mr B also complains that the Council has failed to deal properly with the traffic problems and fly-tipping caused by the removal of the gate and creation of vehicular access, because it did not:

• conduct a traffic survey or implement a residents parking scheme.
• deal with instances of fly-tipping consistently.
• respond to his complaint and requests for information.

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What I have investigated

2. I have investigated that part of Mr B’s complaint about how the Council has dealt with an access road, traffic problems and fly-tipping reported by Mr B within one year of his complaint. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely further investigation will lead to a different outcome.

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

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries.
7. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

What happened

8. In 2015 a footpath from the end of Mr B’s street was expanded into a rough surfaced access road.
9. Mr B complained with the Ombudsman about fly-tipping in 2016. The Ombudsman decided not to investigate his complaint.
10. Mr B contacted the Council in June 2018 about the access road. He was referred to the police. The Council also said it would carry out a traffic survey.
11. In August 2018 Mr B complained to the Council and his MP about travellers occupying land and dumping waste near his home. The Council responded to Mr B’s MP about the issues.
12. Mr B then raised the issue of the access road and fly-tipping again with his MP. The Council said Mr B’s previous complaints had been responded to through the Council, his MP and the Ombudsman, that they had been unfounded and it was unable to continue to respond to Mr B every time he made contact.
13. Mr B’s MP advised him to make a freedom of information request or raise the matter further with the Ombudsman.
14. Mr B complained to the Ombudsman. He was advised his previous complaint was closed in May 2016 and he should make his complaint to the Council. Mr B made further investigations of his own.
15. The access road was blocked off with a fence. Mr B contacted the Council, the police and his MP again. The Council acknowledged his email and promised a response. Mr B continued to talk with his MP about the access road.
16. Mr B chased his complaint with the Council. The Council responded to saying it was aware of an issue but it could not discuss it with him and asked Mr B not to send any further emails on the subject. It reminded Mr B of a warning letter it sent to him in 2016 concerning a fly-tipping complaint.
17. Mr B emailed the Council and asked it to consider new information he provided and respond to him regarding a 2016 complaint at stage three of the Council’s complaints procedure. The Council did not respond to Mr B.

Analysis

The access

18. Due to safety concerns, a level crossing was closed and leisure facilities were left without vehicular access. In 2014, Network Rail paid the Council a sum of £49,000, in respect of the deed of release of rights regarding this closure.
19. At the same time, the Council entered into an agreement with the rugby club and paid £45,000 in return for a deed of access. This allowed access across land owned by the rugby club to the leisure facilities to formalise existing informal arrangements.
20. The rough surfaced access road was created at the same time as a new training facility was built. There is now a stone chipped access road that runs from the end of Mr B’s street to the rugby club and training ground. Mr B says the Council created the access road. The Council disputes this. Without further evidence it would be difficult for me to accurately establish who built the road. I have not investigated this further because I have found fault regarding how the Council dealt with the access road and it is unlikely further investigation will lead to a different outcome.
21. The rugby club restricted access across the vehicular access point covered by the Council’s deed of access.
22. Access onto the land at the end of Mr B’s street including the access road was previously restricted by a gate. This gate was removed when the access was constructed.
23. Vehicular access to the leisure facilities and training ground through the access road at the end of Mr B’s street became custom and practice.
24. The Council were aware that the metal gate at the end of Mr B’s road had been removed by the rugby club by August 2018 because it wrote to Mr B’s MP stating this.
25. When Mr B raised the issue of the access road that had been created with the Council, he said it had not been a problem until then. Mr B also raised problems with the rugby club who took action to reduce the problem.
26. The land including the access road is owned by a housing developer. The housing developer leased the land back to the Council. The lease arrangement ended because the housing developer intends to develop the land.
27. The housing developer agreed to fund a gate at the rear of the rugby club to facilitate secure access for people accessing the leisure facilities, through land behind and owned by the rugby club. This gate has been constructed.
28. The Council agree the only recognised right of way is a public footpath. The access arrangements have now been resolved along the route agreed in the deed of access.
29. The access road that was created did not have any legal standing. I have not seen any evidence that the Council took action regarding the access road after it was brought to their attention, when legitimate access was available by way of the deed of access. This was fault by the Council. However, Mr B did not suffer any significant injustice as a result because:
• Mr B said until 2018 the access road caused no problems.
• on the balance of probabilities, the traffic increase would have been limited.
• any impact on Mr B would not have been significant.
• the Council has no jurisdiction about traffic speeds or driving behaviour on public highways.

Traffic problems

30. The Council does not have any jurisdiction regarding Mr B’s complaint about traffic speeds or behaviour on public roads. The Council advised Mr B to raise such concerns with the Police. The Council was not at fault.
31. The Council says it received no requests for a residents parking scheme in Mr B’s road. However, the Council wrote to Mr B in 2015 saying it would include his road in a residents parking scheme in early 2016. I have not investigated this part of Mr B’s complaint further because it is out of time.
32. In September 2018, the Council told Mr B it would carry out a survey of traffic issues. The Council agrees it has not done this. This was fault by the Council. Mr B did not suffer any significant injustice as a result, for the same reasons outlined in paragraph 29.

Fly tipping

33. It is the Council’s responsibility to remove fly-tipping on land that it owns. In this case, the land leased back from the Housing Developer was the Council’s responsibility. Land behind houses on Mr B’s road is unadopted and is the private responsibility of those property owners.
34. Mr B has made three reports to the Council about fly-tipping since 2018. The Council assessed and responded appropriately to each of Mr B’s fly-tipping reports. The Council was not at fault.

Mr B’s complaint

35. Mr B’s complaint in 2016 related to fly-tipping.
36. Mr B’s complained about traffic problems, the access road and delay in dealing with the situation.to the attention of the Council at the end of February 2018. The Council acknowledged his complaint and said it would send him a response in a few days.
37. The Council responded to Mr B saying it would inspect his street and take any appropriate action. It said it would not discuss the matter with Mr B and asked him not to send any more emails about the subject. It said any further communication from Mr B would not be responded to.
38. Mr B emailed the Council and asked it to consider new information and deal with this 2016 complaint at stage three of its complaints process.
39. The Council considered Mr B’s 2016 complaint to be closed. Mr B’s request to deal with his complaint at stage three was three years after he made his complaint. The Council followed its corporate complaints process when it responded to Mr B.
40. Mr B had made the Council aware he had new information. The acknowledgement provided by the Council created an expectation that it would provide a response to Mr B about this.
41. The Council did not respond to Mr B about the new information he raised or deal with the information as a new complaint. This was fault by the Council. Mr B did not suffer any injustice as a result because the issue of access to the leisure facilities and training ground was already being addressed. Access arrangements have now been resolved along the route agreed in the deed of access. It is unlikely that Mr B’s complaint would have led to a different outcome.

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Final decision

42. I have found that the council was at fault in how it dealt with the access to leisure facilities, not conducting a traffic survey and how it responded to Mr B’s complaint. Mr B did not suffer any significant injustice.
43. I have now completed my investigation.

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Parts of the complaint I did not investigate

44. I have not investigated Mr B’s complaints about fly-tipping that is over a year old, that he says he has not reported to the Council, or have already been subject to a complaint to the Ombudsman. This is because it would be a late complaint and I have seen no good reason to investigate it, the Council has not had the opportunity to respond to the issues and it is unlikely that further investigation would lead to a different outcome.
45. I have not investigated Mr B’s complaint about residents parking further, because evidence shows it would be a late complaint and I have seen no good reason to investigate it further.

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Investigator's decision on behalf of the Ombudsman