Wakefield City Council (19 004 229)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 20 Nov 2019

The Ombudsman's final decision:

Summary: Mr D complains that the Council did not properly deal with the issue of access to commercial premises and leisure facilities, failed to deal with traffic problems and fly-tipping near his home, wrongly took enforcement action against him and didn’t deal properly with a complaint. The Council was at fault in the way it dealt with an access road. Mr D did not suffer any injustice.

The complaint

  1. Mr D complains that the Council has not properly dealt with the issue of access to commercial premises and leisure facilities and has also not dealt properly with fly-tipping behind his house because it:
  • has not ensured that proper access has been maintained.
  • allowed improper access to be used from the end of his street.
  • has not dealt with instances of fly-tipping which he reported.
  • wrongly took enforcement action against him for fly-tipping.

Mr D is also unhappy about how the Council dealt with a complaint about bin men. Mr D says he has suffered increased traffic problems near his home, his health has been affected and the Council are ignoring him.

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What I have investigated

  1. I have investigated that part of Mr D’s complaint about how the Council has dealt with an access road, traffic problems and fly-tipping reported by Mr D 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

  1. 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 we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome.

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

  1. 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)
  2. 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)
  3. 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

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

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What I found

What happened

  1. In 2015 a footpath from the end of Mr D’s street was expanded into a rough surfaced access road.
  2. Mr D wrote to his MP in October 2018 in support of an issue raised by one of his friends, Mr C. Mr D complained about issues involving traffic, the sale of land, fly-tipping and enforcement action taken against him by the Council.
  3. Mr D’s MP received a response from the Council at stage and passed it to Mr D.
  4. In March 2019, Mr D complained to the Council about fly-tipping and the actions of bin men and sent evidence to the Council about it.
  5. The Council responded to Mr D at stage one of its complaints process. It upheld Mr D’s complaint about bin men and apologised to him.
  6. Mr D replied to the Council about fly-tipping incidents and provided additional evidence about them.
  7. Mr D contacted the Ombudsman because he said he had not had a further response from the Council.

Analysis

The access

  1. 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.
  2. 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.
  3. 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 D’s street to the rugby club and training ground.
  4. The rugby club restricted access across the vehicular access point covered by the Council’s deed of access.
  5. Access onto the land at the end of Mr D’s street including the access road was previously restricted by a gate. This gate was removed when the access was constructed.
  6. Vehicular access to the leisure facilities and training ground through the access road at the end of Mr D’s street became custom and practice.
  7. The Council were aware that the metal gate at the end of Mr D’s road had been removed by the rugby club by August 2018 because it wrote to Mr D’s MP stating this.
  8. When Mr D’s friend, Mr C, raised the issue of the access road with the Council, he said it had not been a problem until August 2018. Mr C also raised the issue with the rugby club who took action to reduce the problem.
  9. 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.
  10. 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.
  11. 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.
  12. 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 D did not suffer any significant injustice as a result because:
    • Mr D’s complaint about the access road and traffic was not made until 2019.
    • on the balance of probabilities, the traffic increase would have been limited.
    • any impact on Mr D would not have been significant.
    • the Council has no jurisdiction about traffic speeds or driving behaviour on public highways.

Traffic problems

  1. The Council does not have any jurisdiction regarding Mr D’s complaint about traffic speeds or behaviour on public roads. The Council was not at fault.

Fly tipping

  1. 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 D’s road is unadopted and is the private responsibility of those property owners.
  2. Mr D made four reports to the Council about fly-tipping since January 2018. The Council assessed and responded appropriately to each of Mr D’s fly-tipping reports. The Council was not at fault.

Mr D’s complaint

  1. Mr D received a stage one response from the Council about his complaint. Mr D did provide more evidence about fly-tipping. I have not seen any evidence that Mr D asked to escalate his complaint to stage two. The Council followed its complaints process. The Council was not at fault.

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Final decision

  1. I have found that the council was at fault in how it dealt with the access road to leisure facilities. Mr D did not suffer any significant injustice.
  2. I have now completed my investigation.

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Parts of the complaint I did not investigate

  1. I have not investigated that part of Mr D’s complaint about enforcement action taken against him in 2016. This is because it would be a late complaint and I have seen no good reason to accept it for investigation now.
  2. I have not investigated that part of Mr D’s complaint about bin men because the Council has already investigated and apologised to Mr D. It is unlikely the Ombudsman would be able to add to any previous investigation by the Council or that further investigation would lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman

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