Summary: Mr C says the Council is at fault for the way it handled its role in a development which encroached onto his land. He says it refused to discuss his legitimate concerns with him, acted in a high-handed manner and relied on two different sets of plans when determining where his boundary lay. He says it agreed to pay to legally extinguish any rights the highways authority had over his garden and then reneged. There is insufficient evidence to say whether officers were high-handed or made promises to Mr C.

The complaint

1. The complainant who I have called Mr C says the Council was at fault for:
1. Various failures of communication during a dispute about the encroachment of a pavement into his garden; and
2. making and then breaking an offer to pay for his garden’s legal designation as highway to be removed.

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What I have investigated

2. Elements of this complaint are matters that could have been decided in court and are, therefore, beyond the Ombudsman’s remit. The exact line of the border for example, is a matter of law and fact which a court, using the resources at its disposal, is better placed to determine.
3. I have limited the investigation to matters within our jurisdiction. I have looked to see whether the evidence shows the Council told Mr C it would pay for legal work as Mr C claims.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to do so. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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

7. I spoke to Mr C and asked him to send me evidence relevant to this enquiry. I wrote an enquiry letter to the Council requesting evidence and answers to relevant questions. I considered its response and the relevant evidence.

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What I found

What should happen

Highways appropriation

8. The Council is the local highways authority. It has responsibility for repairing most local roads. Where a new road or an expansion of an old one is required because of a development, the Council may take responsibility for that highway by:
1. Acquisition – buying the land;
2. Adoption – where a developer develops land and hands that part of it used for highways over to the highways authority to maintain at public expense; and
3. Dedication – where the highway remains privately owned but the public has the right to use the surface, usually after a s.38 agreement.

Once a highway, always a highway

9. It is settled law that land that has once been a highway is, in almost all circumstances, always a highway. This was restated fairly recently in R (on the application of Smith v Land Registry and Cambridgeshire County Council (2010) where Mr Smith argued, unsuccessfully, that having occupied land that had previously been highway for 12 years, it should legally belong to him.
10. While this argument might have been successful if the land had not been highway, the court held that, as the public right of way had not been extinguished, it would remain ‘a highway’. The court stated that the public right of way could only be extinguished in very rare circumstances.

Highways Act 1980, s.116

11. S.116 of the Highways Act 1980, gives power to the magistrates’ court to authorise stopping up or diversion of a highway. A local authority can make an application for a stopping up order supported by evidence. If granted, this will end the status of the affected land as a highway.

What happened

Background

12. Mr C lives in the Council’s area in a house built in the mid-20th century. Mr C bought the house in the 1980s when the area was semi-rural. The property is registered at the land registry and is shown as possessing land which extends beyond his front hedge to the edge of the highway as it then was. There was no pavement, only a strip of verge leading down to the metalled surface.
13. In 2015, a building company (‘the developer’) applied to the local district council (not the Council under investigation here), for planning permission for a sizeable housing estate on Mr C’s road. The plans proposed the creation of a 1.9m wide pavement along Mr C’s side of the road.
14. The developer claimed, in the planning application, that the land in front of Mr C’s house was already adopted as highway and did not belong to Mr C.
15. Mr C says that there is evidence that it knew that this was not the case because the plans showed a 1m ‘pinch point’ in front of Mr C’s house, where the pavement would reduce from 1.9m to 1.5m as it went past his hedge.
16. During an appeal against the development heard in 2015, agreed evidence showed the pavement running outside Mr C’s hedge.
17. The developer submitted amended plans in 2016. Mr C asked a council officer to come to his property and explain the impact the revision would have on his property. An officer wrote to him saying there would be ‘no change’. Mr C told the officer he would like to understand the new agreement between Council and developer because ‘it may be that I would wish to challenge that agreement that was made without my knowledge and may have land ownership issues’.
18. The Officer replied ‘I am sorry. It is not for me to explain the proposals. I am content that both the original and alternative proposals would only require land which is either highway or under control of the developer …. I have agreed in principle to [the developer’s] alternative access proposal’.
19. Following another request from Mr C, the next day the same officer wrote ‘you do not need to be involved at all as no part of your property curtilage is required to deliver the improvement works. There is no need to attend a meeting with you.
20. The officer also said that the extent of the highway had been agreed in a ‘statement of common ground’ at the appeal in 2015. This, Mr C says, shows that the land in question belongs to him.
21. Later, in June 2016, Mr C offered to go to the Council’s offices to discuss the matter. The officer rebuffed this offer stating again that any affected land either belonged to the developer or was already highway.
22. In 2017, the developer made a further planning application, this time to change the road layout. In this application, there was no ‘pinch point’ shown on the plans.
23. Construction began in 2018. In August 2018, the contractor carrying out the works marked the path of the proposed pavement on the ground. Mr C was concerned the proposed pavement ran extremely close to his hedge and would require the removal of a brick pier at the front of his property. He alerted the Council.
24. Representatives of the developer, the contractor and the Council met Mr C at his house to discuss the problem three days later. He says they agreed to move the highway slightly to protect the pier.
25. On 13 August 2018, at another meeting between Mr C and representatives of the developer, contractor and Council, the parties agreed the position of the northwest corner of Mr C’s property. The Council officers present said they would prefer a 2m wide pavement. This would require the realignment of the highway. All parties agreed.
26. However, later the same day, a meeting with a senior manager at the developer, the developer stated it would not realign the highway to accommodate a 2m footpath. At this meeting, it was agreed that the footpath would reduce to 1.5m at the pinch point with the minimum possible realignment of the highway.
27. Mr C says he spoke with a Council officer by phone after the meeting who said he felt this was a reasonable compromise. However, later, the developer said it refused to abide by that agreement.
28. On 20 August 2018, work on the pavement in front of Mr C’s house resumed. The line was not as agreed on 13 August. Mr C realised that the footpath would intrude into his property by 20cm. He emailed the developer.
29. On 21 August 2018, Mr C says an employee of the developer, Mr D, came to Mr and Mrs C’s house and told Mrs C that no one at either of the meetings of 13 August had authority to agree to limit the pavement’s width and the developer would not do so. He said the pavement would be 1.9m wide and could encroach into Mr C’s garden as it was adopted highway. Mr C says Mr D made an offer of compensation either in cash or through works to the property.
30. On 23 August, Mr D came to Mr D’s house by arrangement. Mr C says they discussed ownership of the land and Mr D again offered compensation. On 24 August, Mr D emailed Mr C and said that the plans seemed to show that much of Mr C’s garden was actually designated highway.
31. The next day, a Council officer wrote to Mr C saying further investigation had shown that the highway encroaches further into Mr C’s garden than previously thought. Over the next few days, Mr C sent Officer O further documents including the ‘extent of undisputed highway’ drawing. He said, ‘The overlay of the highways boundary and the topographical survey seems to show the highway boundary even further into your property etc … clearly we will not be using those extents but we will need to optimise the footway width to your hedgerow etc’.
32. Mr C phoned the Council and said he spoke to a Council officer, Officer O. Mr C says Officer O told him:
• the adopted highway encroached deep into Mr C’s garden;
• a 1.9 metre footpath was required; but
• he would be happy to amend the drawings to extinguish any claim over the remainder of Mr C’s garden in future.
33. Mr C sent various emails to the Council with documents showing the ‘green line’ agreed at the appeal and pointing out that it had been agreed by all parties there had been a pinch point.
34. Mr C received until 6 September 2018, when Officer O sent him a 19th century map, which predated Mr C’s house by more than 80 years, which showed the highway extending into an area that later became Mr C’s garden.
35. Mr C wrote to another officer, Officer P, an engineering team leader on 11 September 2018. Officer P said he believed Officer O had sent Mr C a historical plan showing that the highway once entered Mr C’s garden. He said the Council was not intending to extend the highway inside Mr C’s hedge but did intend to extend the highway to the edge of the hedge.
36. Officer P added ‘with regards to the remaining area of highway within your garden, I am happy to have a discussion with our highway records team to look into the possibility for applying for a section 116 (1980 Highways Act) [order] which is a stopping up order. This will remove any highway rights from this parcel of land and therefore remove the possibility of being subject to any highway related scheme in the future of enforcement action against you for enclosing the highway. Following this I would suggest that you apply to the land registry to register the land as yours, but this would be your choice. Please confirm that you would like me to start discussions with our highway records team’.
37. Mr C responded the next day saying that what Officer P proposed would, in fact, involve encroaching into Mr C’s garden. He suggested that the Council had realised its mistake and decided to ‘nick a bit of land’ off him. The email records suggest that Mr C and Officer P then spoke on the phone after which, Mr C wrote ‘further to our telephone conversation a short time ago I confirm that I would like you to proceed with the works of updating the highways records to remove what is currently shown as highways land from the property….I assume you will let me have a copy of the updated records when completed. I confirm that you do not anticipate that I would have to pay for this service’.
38. Mr C says Mr D visited him again on 13 September 2018 and told him ‘the verdict’ was that a 1.8m pavement would be built past Mr C’s house. He said it would follow the original line. He told Mr C the developer had an agreement with the Council and it had to build in accordance with the agreed plans. Any dispute Mr C had, therefore, was with the Council, not the developer.
39. Mr C says he contacted Council on 13 September 2018. He says he spoke to an officer, Officer P and told him the pavement would encroach past the green line into Mr C’s property. Mr C says Officer P said, ‘Oh dear, this should not have been agreed’.
40. Mr C says he spoke to Officer P again on 17 September 2018. He says Officer P told him the decision on the 1.8m path was final but that the Council would amend the plans free of charge to ensure that there would be no problems with the boundary in future. The Council says it accepts that Officer P ‘can recall stating that we would look into the possibility of removing highway rights but we have no record of agreeing to pay for the cost of having this completed’.
41. In December 2018, Officer P wrote to Mr C about the removal of highway rights. He said ‘I am led to believe that there are a couple of avenues that can be explored in order to remove highway rights. I have spoken to our highway records team to establish whether they could revalidate the highway boundary’. He requested ‘historical evidence’ about use. He suggested Mr C should right to the highway rights department with a covering letter explaining the situation’.
42. Mr C replied saying that Officer P had offered to deal with the matter in September and told him there would be no cost to Mr and Mrs C.
43. Later, in April 2019, Mr C corresponded with the Council about having highway rights removed. The Council told him it would cost him £4000. Mr C complained, stating that the Council had

Was there fault causing injustice?

Failures of communication

44. Planning permission for the relevant development was granted not by the Council but by Mr C’s local district council as planning authority. Many of the contacts that Mr C had during these events were with representatives of the developer and its contractor. The Council’s role in this dispute is limited. The Council is responsible only for the actions of its own officers. It is not responsible for planning matters or the development itself. It was only peripherally involved in the early stages.
45. Mr C says the Council only showed him the 19th century map which showed the highway extending into his garden in 2016. I accept that this was the case but do not find fault with the Council for that. When the map came to light, the Council shared it with Mr C. It showed that, in fact, the highway extended into his garden. Whether this map is accurate or binding is not a matter for the Ombudsman but for the courts.
46. There is also no independent evidence to show whether officers were rude to Mr C. I cannot therefore make a decision on that point.

Reneging on offer to pay legal costs

47. The Ombudsman can, however, investigate one point. Mr C claims Officer P told him the Council would pay for the stopping up order application under s.116 of the Highways Act 1980.
48. The Council says it has no evidence that Officer P made any such offer. The email evidence provided by both Mr C and the Council is inconclusive. It is clear Mr C and Officer P discussed the matter in September 2018. Mr C then emailed Officer P saying he would like to proceed. Officer P did not reply.
49. The next time they emailed about the matter in December 2018, Officer P offered to put him in touch with the relevant department and told him how to proceed should he wish to take it forward. He does not mention payment.
50. The Ombudsman makes his decisions on the evidence and on the balance of probabilities. That is to say, we must find it more likely than not that Mr C’s version of events is the correct one to uphold the complaint.
51. In this case, I do not have sufficient information to do so. The evidence does not show that the Council made the offer as Mr C claims. I cannot, therefore, uphold the complaint.

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Final decision

52. I have found that there is insufficient evidence to uphold Mr C’s complaint. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman