Summary: There was no fault by the Council when it intervened to stop unauthorised works to a public footway.

The complaint

1. Mr X complains the Council prevented him replacing a fence on his boundary and made him cease works and reinstate holes dug for fence posts. Mr X says this caused him injustice as he had to pay his contractors £300 for a wasted day’s work. Mr X also says the officer who stopped the works caused his wife distress.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered information provided by Mr X and the Council including the complaint correspondence and the Council’s records.
5. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

Factual background

6. Mr X hired a contractor to replace his fence which ran along the boundary of his property. The fence adjoins what Mr X describes as a ‘redundant tarmac pavement’ leading to a ‘dead-end’. He says he researched the planning position and believed he did not need planning permission to replace an existing fence on a like-for-like basis.
7. Mr X says the centre of the fence was to remain in the same place, but the two ends would be brought out by 150 millimetres (mm) to achieve a straight line. Mr X says the day the works started a neighbour called the Highways department to complain and an officer appeared within fifteen minutes.
8. Mr X says the officer was rude, did not introduce himself and was aggressive stating the works must stop, the holes must be filled in, and that Mr X was stealing council property.
9. Mr X said when the officer arrived one fence panel was already in place. He had to pay contractors £300 for the day’s work and was left with an incomplete fence.
10. Mr X complained to the Council. He said he was replacing the fence like-for-like (except he was replacing timber posts with concrete posts). Mr X says he did bring the fence line out 150mm onto the pavement. Mr X said the officer told him he must reinstate the two holes that had been made in the tarmac and the officer would return the next day to inspect the site.
11. Mr X says the work was doing no harm using only a few inches of unused pavement and the officer’s attitude caused his wife distress. Mr X says common sense should have prevailed to allow the work to go ahead.
12. Mr X did reinstate the pavement as asked and noted an officer did come by and check this the following day.
13. Mr X complained to the Planning Department that he had contacted the Council and since found out the pavement had nothing to do with the Planning Department but fell under the jurisdiction of the Highways Department. Mr X says he then sought telephone advice from the Highways Department about whether permission would be required and was advised this would not be necessary for a trivial adjustment, that he could go ahead with the work, and if the Council ever felt inclined to check it, and found it not to standard, the Council could then ask Mr X to rectify it.
14. Mr X said the contradictory telephone advice showed the original officer’s advice to stop work was an error. He asked the Council to reimburse him £300 expenses and pay compensation of £500 for his wife’s distress.
15. The Council said the officer who visited was in the area at the time the call was received. The officer’s role was to provide a ‘rapid response’ to issues. The officer said he had provided identification to Mr X. The Council apologised if Mr X found the officer’s tone ‘arrogant and forceful’; it would have been intended to be ‘helpful but assertive’.
16. The Council said the officer had arrived to find two holes had been dug and the contractors in the process of digging a third hole. The Council said it was necessary to gain permissions prior to works on the pavement or highway so checks of utilities could be made.
17. The Council told me that the officer who later gave telephone advice did not record the call and so the content cannot be definitively confirmed. The Council confirmed the officer was spoken to before the Council replied to Mr X’s complaint on 29 May 2019. The officer could not recall the exact details of the conversation but did remember Mr X had asked for advice about replacing a fence on his property and whether he required permission. The Council understood Mr X’s question to be about work on private land, not the public highway. It confirmed by letter on 29 May 2019 permission is not needed on private property but any works within the confines of the public highway required consent from the Highway Authority.
18. The Council said as Mr X had not sought the necessary permissions the officer on the scene was correct to advise Mr X to cease works until the necessary permissions had been applied for.
19. As Mr X was wishing to claim ‘compensation’ for ‘negligence’ the Council advised Mr X to contact the Council’s insurers.
20. The Council told me the works were halted as a highways violation under the Highways Act 1980 (‘the Act’), sections 130,131,132 and 133. The works undertaken were classed as an encroachment into the publicly adopted highway and an illegal excavation within the publicly adopted highway, as the necessary permissions and permits under the above sections of the Act and section 171 were not obtained.
21. The Council confirmed to me the works were not just on Mr X’s property but also on the Council’s adopted highway, namely the footway.
22. The Council says the illegal works were stopped and the excavation immediately rectified so no encroachment or safety issues remain.
23. The Council later said it would not process the matter through its corporate complaints process even though Mr X did not regard the insurance route as a viable option.

Analysis

24. I have checked the sections of the Act the Council has referred to and find no fault by the Council in stopping excavation of the highway without permission. There is no fault by the Council, it has acted in accordance with the law. Mr X has admitted that his works did encroach onto the pavement.
25. While Mr X says another officer later gave conflicting advice, the content of this call cannot be verified. There is insufficient evidence to make a finding whether Mr X asked about doing works on his own private property (for which permission from Highways was not necessary) or whether he specifically asked about doing works that encroached on the public highway and was misdirected. Whatever happened in this call it does not alter that the officer on the scene at the time was entitled to reach the decision he did to stop the works and require rectification of the footway. That another officer may subsequently have given incorrect advice about the same matter has not caused any injustice. Any lost costs on Mr X’s behalf flow from his decision to do works without the required permissions not from any fault by the Council. These costs had already been incurred before the alleged contradictory telephone advice was given.
26. The Council has already apologised to Mr X if he and his wife found the officer’s tone upsetting. An apology is an entirely appropriate remedy for this sort of alleged injustice. This is not the level of injustice for which the Ombudsman would consider a financial remedy appropriate.
27. While I appreciate that Mr X was unaware of the provisions in the Highways Act and wrongly assumed this to be a purely planning matter, this was not the fault of the Council.
28. There was some confusion about whether the Council’s insurers or complaint process was the appropriate route to consider Mr X’s claim for ‘compensation’, but the Council did provide Mr X with an appropriate explanation of the Council’s position. He did get a response to his complaint. Mr X pursued the matter further, but the additional time and trouble incurred was his own choice.

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Final decision

29. I have completed my investigation of the complaint. There was no fault by the Council in intervening to stop illegal works to a highway where permission had not been sought in advance. Any financial loss or injustice incurred by Mr X arose from his incorrect assumption he did not require permission to excavate a public highway, not from any fault by the Council. The complaint is not upheld.

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Investigator's decision on behalf of the Ombudsman