Summary: Solicitors complained on behalf of Mr X about the way the Council has handled an issue of highway rights. The Ombudsman does not find fault with the Council’s main decision-making and it is unlikely investigation of related issues will lead to a different outcome for Mr X.

The complaint

1. Solicitors complained on behalf of Mr X about the way the Council dealt with an issue of highway rights over land within Mr X’s business premises. The Council initially agreed to process a stopping-up order to extinguish the highway rights but then decided not to go ahead. The Council suggested a licence agreement instead but Mr X considered that unworkable.
2. Mr X says the Council’s change of mind, failure to provide information and delays caused uncertainty for the business and led to increased expenditure on legal costs. Mr X’s solicitor wanted the Council to compensate Mr X for unreasonable delays, refund an application fee, provide further information and pursue a stopping-up application.

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The Ombudsman’s role and powers

3. 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)
4. 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, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. From documents provided by Mr X’s solicitor I am aware of events from 2013 onwards. I have not investigated matters going back that far. Mr X’s solicitor could have approached the Ombudsman far sooner with concerns about delay and the Council’s consultation over a proposed stopping-up order. I have exercised discretion to investigate events from 2017 onwards. The period under investigation starts with the Council telling Mr X’s solicitor it would no longer pursue a stopping-up order and includes the Council’s response through its complaints procedure.
7. 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

8. I have considered information from:
• Mr X’s complaint and correspondence provided by his solicitor;
• the Council’s response to the solicitor through its complaints procedure; and
• documents provided by the Council.
9. I gave Mr X’s solicitor and the Council the opportunity to comment on a draft of this decision.

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What I found

Background

10. Mr X runs a business from commercial premises. Almost 30 years before Mr X bought the premises, the highway authority imposed highway rights over part of the land by way of a legal agreement. The procedure used did not involve a transfer of title so was not added to the registered title of the land. Hampshire County Council is the current highway authority.
11. When Mr X bought the premises the vendor did not make him aware of the agreement and the issue did not come up in the land searches Mr X commissioned. Mr X became aware of the rights several years later. He was concerned because part of his business operated over the land with the rights.
12. Before the events I have investigated the Council said it would apply to the magistrates’ court for the highway rights to be stopped up. This is a discretionary power given to highways authorities under Section 116 of the Highways Act 1980. The Council agreed to process a stopping-up application for half its normal fee, which Mr X then paid.

Events 2017 onwards

13. In 2017 the Council told Mr X’s solicitor it would no longer agree to stop up the highway rights because of a local councillor’s objection. A county councillor supported concerns the parish council had voiced during consultation on the proposal before 2017. The Council said it would grant licences to allow Mr X’s business installations to stay in the highway. It agreed to refund the application fee Mr X had already paid.
14. In 2018, a year after the Council confirmed its decision not to apply to stop up the highway rights, Mr X’s solicitor contacted the Council again. He said Mr X was reluctant to accept the offer of licences given the previous offer to stop up the highway rights. He then wrote further explaining why licences would not be workable and asked for information about how the Council had handled the issue over several years, including before 2017. The Council treated the solicitor’s correspondence as a complaint.
15. In October 2018 Mr X’s solicitor made a Freedom of Information Act request to see copies of correspondence between the Council stopping-up and other bodies it consulted, before 2017, in connection with the proposed application. The Council provided this information at the end of October 2018. It included the concerns voiced by the parish council and county councillor.
16. The Council responded to the complaint at the end of 2018. Mr X’s solicitor considered the Council still did not respond fully to all the concerns and requests for information. The Council apologised for some avoidable delays and a lack of acknowledgements and updates but said its decision stayed the same. It would not process a stopping-up order. It said it would still refund the application fee if it had the relevant bank details. It said the Council considered the licences would allow what Mr X needed and the offer of them was still open.
17. Mr X did not provide bank details for the Council to refund his money. He did not agree to the licences as he still believed them unworkable. Mr X still wanted the Council to stop up the highway rights.

More recent action, July 2019 onwards

18. In July 2019 the local councillor and parish council told the Council they withdrew their concerns. The Council then started further discussion with Mr X’s solicitor. In December 2019 the Council agreed it would process a new stopping-up application.

Findings

19. Mr X was in a difficult position because his business was affected by highway rights he was unaware of when he bought his business premises. Once Mr X knew of those rights that caused some uncertainty for his business. That uncertainty continued while Mr X and the Council did not agree a way forward. However, the failure to agree was not the result of fault by the Council.
20. The Council was never under a duty to make the stopping-up application. This is a discretionary power for the Council. In 2017 the Council changed its mind about pursuing the application because of concerns raised by the parish council and a county councillor. The Council was entitled to decide not to pursue the application in these circumstances. It was still prepared to refund Mr X’s application fee. There was no fault in the way the Council reached its decision so I cannot question the decision itself.
21. The Council was still prepared to issue licences to Mr X. Whether such licences would have worked is not something the Ombudsman can decide.
22. The Council accepts it delayed in the earlier stages and apologised. Since 2017 there were no significant delays by the Council. Until July 2019 the reason why
    Mr X considered the matter unresolved after so long, and why he incurred increased legal costs, was he continued to argue for a stopping-up order even though since 2017 the Council had said it would not pursue such an order. Once the local concerns were withdrawn in July 2019 the Council took action to start a new stopping-up process.
23. Mr X’s solicitor considers the Council did not respond to Mr X’s complaint as fully as it should have. The Council did not answer all the solicitor’s questions in the detail the solicitor wanted. However, the Council’s response confirmed the issue at the heart of the complaint. It explained why it would not pursue the stopping-up order because of local concerns. As there was no fault in how the Council made its original decision, and the stopping-up order is now being pursued again, it is unlikely further investigation by the Ombudsman will lead to a different outcome for Mr X.

Final decision

24. I have now completed my investigation of the complaint. I have found no fault in the way the Council made and upheld its decision in 2017 not to process a stopping-up order. Further investigation of other issues is unlikely to lead to a different outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman