Summary: The Ombudsman found fault on Mrs H’s complaint against the Council about it issuing her with a notice for obstructing highway land. Following initial contact with her about it, the Council failed to contact her again for 18 months. This caused some avoidable injustice. There was no fault with its decision to issue the notice itself as the evidence shows it had reasonable cause to believe she is obstructing the land.

The complaint

1. Mrs H complains the Council, believing she had erected a fence to the front of her property which encroaches on to the public highway, issued her with a notice for obstructing the highway requiring her to remove it from its land; as a result this is causing her a great deal of stress, worry and upset.

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The Ombudsman’s role and powers

2. 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)
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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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Highways Act 1980

5. It is the duty of the highways authority to assert and protect the rights of the public to the use and enjoyment of any highway for which it is highway authority. (section 130 (1)).
6. It is also the duty of the highways authority to prevent, as far as possible, the stopping up or obstruction of their highway (section 130(3)) and may start legal proceedings. (section 130(5))
7. Where a structure has been erected or set up on a highway, otherwise allowed under this or another Act, the highways authority may, by notice, require the person having control or possession of the structure to remove it within such time as may be specified in the notice. (section 143 (1))
8. If it is not removed within the time specified, the highways authority may remove the structure and recover the expenses reasonably incurred by them in so doing from the person having control or possession of it. (section 143 (2))

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How I considered this complaint

9. I considered all the information Mrs H sent, the notes I made of our telephone conversation, as well as the Council’s comments, a copy of which I sent her. I sent my draft decision to Mrs H and the Council. I considered the Council’s response.

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What I found

10. About 3 years ago, Mrs H employed a contractor to remove her 20-foot-high hedge to the front of her property and replace it with a fence instead. The Council, as highways authority, wrote to her in 2017 saying the fence was unlawfully on highway land. It wrote after a highways officer visited the site and took photographs. The letter asked her to move the fence back 1.8 metres within the month and reinstate the full width of the highway verge. The Council sent her copies of plans showing the position of the fence and the extent of highway land.
11. Mrs H refused to move the fence. She maintained the fence was on her land, followed the boundary, and was in line with all the other properties on her road. The officer visited the site again after receiving her letter and confirmed Mrs H had not moved the fence.
12. The Council received a complaint from a member of the public about the fence in September 2018. Officers asked the legal team about the position who in turn asked highways to carry out another site visit given the amount of time that had passed. A highways officer visited and confirmed the situation remained the same. Due to an error, this officer’s information was not passed to the legal team at the time, although I have seen the officer’s email to the team attaching photographs.
13. In November, the member of the public chased the Council again about it which prompted highways and the legal team to clarify the position. An officer again visited the site and took more photographs. The officer’s assessment confirmed Mrs H had fenced off highway land.
14. In March 2019, the same member of public chased the Council. The following month, the Council served Mrs H with a notice under section 143 of the Highways Act 1980 to remove the fence from highway land. She had to comply with the notice by 12 August.
15. The Council explained it, and not HM Land Registry, holds information about the extent of the highway. It accepted it delayed following up the issue after its initial letter to Mrs H in 2017. This was partly because the officer involved retired and due to the legal team’s competing priority of workloads.
16. Officers reassessed the highway in May which confirmed the fence was unlawfully on highway land.
17. In response to my draft decision, the Council confirmed it had no written enforcement procedure for the encroachment of the public highway. When an encroachment takes place, the Council will consider whether to exercise its discretionary powers. In doing so, it will take a proportionate approach depending on the nature and extent of the encroachment. To ensure a consistent approach to such cases, officers get legal advice when appropriate.

Analysis

18. I make the following findings on this complaint:
1. In 2017, the Council told Mrs H about the need to move the fence but, after she replied saying she would not do so, and after an officer visited the site again, the Council took no action until about 12 months later when it received a complaint from a member of the public;
2. In 2018, an officer twice visited the site to get updated information;
3. Mrs H heard nothing further from the Council about the issue until she received the notice in April 2019. This is about 18 months after the Council was last in touch with her about it;
4. In response to my enquiries, the Council explained the delay was because of an officer retiring, competing priorities, and a failure to pass information on by an officer to the legal team. There is no evidence the Council explained to Mrs H during this period what was, or was not happening, with her case;
5. In response to my draft decision, the Council accepted the delay was mainly due to the retirement of the officer who personally had dealt with this situation and a failure to pick up this case up again in a timely way;
6. I consider the delay amount to fault in these circumstances and caused her avoidable injustice. She could have reasonably assumed the Council had decided to take no further action against her because of the time that elapsed. Mrs H would have suffered some distress when she received the notice after 18 months; and
7. I found no fault with the Council’s decision to issue the notice. This is because the evidence it relied on, such as photographs and plans, shows it had reasonable cause to conclude Mrs H had enclosed highway land.

Agreed action

19. I considered our guidance on remedies.
20. I also considered Mrs H’s ongoing benefit of the land in dispute.
21. The Council will, within 4 weeks of the final decision on this complaint, carry out the following action:
1. Send Mrs H a written apology for the delays pursuing this issue and for failing to keep her informed about what was happening with it; and
2. The legal team will consider these delays with the relevant highways team to see how the different services can work better on these issues and whether there is a need for guidance to officers about procedures for this type of case in the future. Such guidance would deal with avoiding delays and keeping parties informed about progress and the status of cases.

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Final decision

22. The Ombudsman found fault on Mrs H’s complaint against the Council. The agreed action remedies the injustice this caused.

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Investigator's decision on behalf of the Ombudsman