Summary: Mr X complained about the Council’s failure to take sufficient action against his neighbour whom he says has enclosed part of the public highway in his garden. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council failing to take action against his neighbour’s encroachment onto the highway verge. He says this led to a dispute which involved his neighbour calling the Police who arrested Mr X over his cutting back the hedge in question.

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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’. 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 would find fault, or
• 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)

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response and Mr X has commented on the draft decision.

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What I found

4. Mr X complained about his neighbour’s hedge obstructing the access view from his driveway in 2016. The Council investigated the matter and also noted that Mr X had placed paving stones on the highway edge. It took no action over this, but Mr X made further complaints in the following years about his neighbour enclosing part of the verge within his garden.
5. The Council took some action to have shrubs removed from the corner of the neighbour’s garden to improve sightline on a turning. Mr X says this did not clear all the highway land and he had a dispute with the neighbour which included the neighbour calling the Police when Mr X tried to cut the disputed hedge.
6. Mr X made a formal complaint in 2019 that the Council had failed to use its highway powers to remove the neighbour’s garden enclosure from the verge. The Council says it took what action was necessary to clear the sightlines but would not act unreasonably in forcing the neighbour to clear the land.
7. Councils as highway authorities have powers to assert and protect the rights of highway users under the Highways Act 1980. They are expected to use these powers reasonably and not unnecessarily. The Council required the neighbour to cut back vegetation to levels which it considered acceptable. It is not required to carry out action to Mr X’s requirements and it should decide what action is reasonable in such a situation.
8. 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.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman