Summary: Mr X complained the Council unreasonably enlarged the extent of the highway and failed to properly respond to his queries and reports. We found no fault in the approach the Council took when deciding the extent of the highway. However, there was a failure to follow up reports about unauthorised highway work. There was also some fault in the records kept by the Council. The Council should apologise and review its record keeping procedures.

The complaint

1. Mr X complains that information the County Council provided to the Local Planning Authority and Planning Inspectorate about a planning application was inaccurate. One of the planning issues was the suitability of highway access. He complains when commenting on the access issue, the Highway Authority inappropriately re-drew the line of the highway.
2. Mr X complains the Highway Authority failed to provide him with appropriate responses to questions about the way the Highway Authority decided the line of the highway and how the Highway Authority decided it should not object to the planning application.
3. He also complained the Council did not properly investigate reports made by residents about unauthorised work being carried out to the highway.

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What I have investigated

4. I have not investigated the way the Highway Authority responded to consultation for the first planning application the District Council decided in 2017. The reason for this is set out in the last section of this statement. I have investigated the way the Council responded to the second application, which was later appealed.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I spoke to Mr X and considered the information he provided. I looked at the documents available on the councils online planning website. I asked the Council for information and considered its response to the complaint.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

9. Mr X complains on behalf of a neighbour (Mr Y). Both live on a narrow rural lane. They objected to the development of a campsite which would use the lane for access. Their complaint is about the way the County Council (which I refer to as “the Council” in this statement) responded to consultations from the planning authority about the campsite. The Council was acting in its capacity as the Highway Authority.
10. Mr X complains that because of the actions of the Council, a piece of land will be taken from Mr Y and included as highway. He also complains that the way the Council obfuscated and delayed responding to their queries caused them both injustice.
11. The Council objected to a planning consultation in January 2017. A highways officer (Officer A) responded. He stated the lane to the site was particularly narrow and only suitable for single file traffic. There were very few passing places, so if cars met, one had to reverse a considerable distance before they could pass. Officer A noted the lane could be improved slightly by providing formal passing bays. However, grass banks and hedgerows would prevent this for long stretches, so, reversing for a significant distance would still be necessary. Officer A expressed concern about the likely level of traffic the campsite would generate as a result. The District Council acting as the Planning Authority, refused the application in March 2017. It was solely refused on highway grounds.
12. In early March 2017 Officer A told Mr X it was unlikely the applicant could submit information that would allay his concerns. Later that month Officer A confirmed his recommendation for refusal had not changed. However, he stated ultimately it was for the elected members of the planning authority to decide whether to grant planning permission. With this in mind he suggested Mr X added comments and concerns about the planning matter to the District Council’s website.
13. In May 2017 the Council responded to query from the applicant. In July 2017 the applicant submitted another application to the District Council for a campsite. He proposed a series of passing places be installed along the lane.
14. In June and July Mr X sent further emails to Officer A making observations and asking questions. Officer A responded to this on 3 July and directed Mr X to the District Council.
15. Mr X sent further emails to Officer A on 6, 7 and 11 August which Officer A responded to on 13 August. Officer A responded to a further email from Mr X on 14 August but stated, as correspondence was continuing, Mr X should now follow the Council’s policy. This requires comments on planning matters to be directed to the District Council as it is the planning authority.
16. Officer A provided comments to the planning authority on 15 August 2017. He noted he had previously recommended refusal and the applicant had now proposed to create passing bays to alleviate highway concerns. Officer A stated the passing bays would improve the road and a suitably designed scheme may mitigate the impact of the campsite. However, he still had concerns that the restrictive nature of the road, the narrow highway verges, steep banks and vegetation would stop usable passing bays being provided. Officer A remained concerned about the increase in traffic. As there was insufficient detail to determine if the passing bays would be achievable, he maintained an objection to the application on behalf of the County Council.
17. A site visit took place on 4 September 2017 at which highways officers discussed the proposals with the applicant.
18. In November 2017 Officer A submitted revised comments to the District Council. He set out the previous concerns about the lane and that a more detailed scheme to mitigate additional traffic had been put forward by the applicant. He stated a scheme of passing places had been agreed in principle. Although concerns had been raised about the narrow highway verges and issues with providing passing places, he set out his view that the proposed passing places would be feasible. Subject to a legal agreement requiring the provision of the passing places, he removed his objection.
19. Although the highways officer removed his objection, the second application was refused by the District Council in January 2018 by the Planning Committee. The District Council decided the development went against a policy requirement to protect the scenic beauty of the area. This was because the creation of passing places would mean alterations to the lane that would erode its visual and historic character.
20. The applicant appealed against the refusal of the second planning application.
21. The Planning Inspectorate upheld the appeal in July 2018. The Planning Inspector considered the main issue was the impact on the character and appearance of the area. He approved the planning application with conditions. One of the conditions required the applicant to provide passing places. The Planning Inspector stated passing places were considered a common and necessary element of the countryside landscape. He stated the passing places were imperative to ensure highways safety and only some very slight erosion of the lane would occur. He stated the alterations would not themselves erode the character of the lane or detract from the historical use of the area.
22. In May 2019 Mr X complained to the Council. He stated it had moved the line of the highway into land Mr Y owned. Mr Y signed a statutory declaration stating he owned land that the Council had now stated was highway. Mr X complained it was inappropriate for the highway extent to be changed during the planning process.
23. Mr X also explained his concerns that Officer A had been unhelpful since the second application was put in and he had changed his view for no apparent reason.
24. Mr X complained that there had been a factual error by the Highway Authority when it changed the line of the highway. He stated he wanted the line of control to be moved back.
25. In its response, the Council told Mr X it had not recently changed the considered extent of the highway. It had amended it in 2005 following a request for information made then. In 2005 it had not updated its records.
26. In 2017 the Council says it carried out a site visit and made minor adjustments when plotting the highway extent on a more up to date ordnance survey map. The line was based on the features on the ground and interpretation of those features on the ordnance survey map. It described the area around passing place one in particular. It noted plans showed the general position of the highway boundary not the exact line. The response explained how the council considers features such as hedges when making decisions. The Council stated it had no duty to update landowners when updating its records. The Council found that its officers had correctly assessed the limits of the highway and had not been at fault.
27. Mr X felt the Council had failed to recognise that it had not followed the correct legal process to widen the extent of a highway. He sent the Council a protocol adopted by another Highway Authority. This addresses the situation where the land registry has issued a search result showing a section of unregistered land (“a gap”) between highway land and a land owner’s registered title. The note addresses what that Authority should do in this event. It refers to the need to refer to the land register before the land making up the “gap” can be dedicated as highway. Mr X felt the situation here was akin to “a gap” between the Council’s land and the land owner’s boundary. He felt a formal process should be followed by the Council to include any additional land as “highway”.
28. The Council responded to this, stating this did not apply here. The Council stated it was not dedicating new land as highway, which was what the other council’s protocol was about. Rather, the Council was adjusting its understanding of the location of the highway boundary.
29. Mr X disagreed with the Council’s response. He stated the Land Registry had advised them that while there may be some leeway in the interpretation of the position of a line on the ground, the actual highway extent could not be extended. The Council stated it had given Mr X its considered legal opinion, so Mr X brought his complaint to the Ombudsman.
30. In his complaint to the Ombudsman, Mr X commented the Council did not explain how it had decided the highway line or respond properly to his queries. He stated when objecting to the original planning application, Officer A was helpful and responded to his queries. But, after the applicant contacted the Council in May 2017, Officer A’s view changed. Following that, he felt that Officer A appeared to be aiding the applicant by avoiding responding to Mr X’s queries.
31. Mr X also complained that when he reported unauthorised work to the highway this was not properly investigated.

The Council’s position

32. The Council expanded on what it told Mr X in response to his complaint. It stated when it determined the highway extent in May 2017, it also plotted it onto a new Ordinance Survey system. It says it added some previously undefined areas and made some minor adjustments as part of this work. The Council stated it was difficult to precisely determine how much land was affected in this case. This is because of the thickness of the lines on the maps and because the original line did not follow a specific feature. It estimated the change was 1 metre at its widest point.
33. The Council stated amendments like these often happen because Ordnance Survey data in rural areas was known to be incorrect historically. It stated historic surveys had been relatively poor in rural areas. This has been corrected in more recent Ordnance Survey maps.
34. The Council told us it did not make the changes because of the planning application under consideration. Rather the officer concerned made a judgement about the extent of the highway based on their assessment of the lane.
35. The Council noted, in December 2005, a different officer had provided information to a landowner about the extent of the highway on the lane. The Council stated the officer provided the landowner with a hand drawn map. The view taken by the officer in 2005 was the same as that reached by different officers in 2017. However, the Council says its records were not updated in 2005 as they should have been. So, in response to a query in 2008, the Council had sent someone its ‘original’ view of the highway extent.
36. The Council did not agree that its officers had given inaccurate information to the District Council in 2017. The information its response was based on was the considered opinion of a highway officer. This was based on an assessment of the features on the ground on the lane. Given another officer reached the same view previously (in 2005) it disagreed that the line of the highway had been extended to favour the developer. Rather, it’s existing view had been more accurately plotted.

Highway Authority Systems

37. The Highway Authority hold records of all the streets that are maintainable at public expense. The records show the status of the road and any other information used to answer queries about it. The records show the ‘full highway right’ and the extent of the highway together with references to any other paper documents or notes that provide additional information.

Legislation and process for changes to the extent of the highway boundary

Highway and Land Ownership

38. Some highway land is fully owned by the Highway Authority. However, the Highway Authority does not own all land designated as a “highway”. Some land is owned by third parties but the surface, and sufficient depth for the construction and maintenance of the highway is vested to the Highway Authority.
39. A Highway Authority has powers to extend the highway in Section 72 of the Highway Act 1980. This requires the agreement of the affected landowners or the compulsory purchase of their interest in the land.
40. The Council states the current extent of public highway is a considered opinion given by the Council. That opinion will depend on the evidence available at the time the opinion is given. The Council may enforce and act upon its decision.
41. Ultimately the Council’s decision about the highway extent is open to challenge in court. Only the courts can determine the exact extent of the highway.

Was there fault in the way the Council determined the highway extent when responding to the planning applications

42. If a Council wishes to dedicate land as ‘highway’ it cannot do this without the express permission of the landowner, or by going through the compulsory purchase process.
43. The Council’s decision about the line of the highway in 2017 has changed what its records previously showed. This is not disputed. However, the Council says this was a relatively minor adjustment and solely as a result of plotting the existing highway line more accurately. It has not sought to acquire more land or widen the highway per se. I am satisfied that when responding to the 2017 planning consultation, it was not unreasonable for the officer to take account of the features on the grounds and to update the council’s records about the highway extent. Confirming the correct position of an existing highway boundary is distinct from a formal process required if a council seeks to dedicate land for highways use. So, Council’s approach does not represent fault in my view.
44. Where the precise highway boundary falls, is a judgement. I note that the same view (about the extent of the highway) had been reached in 2005. So, I am satisfied there was no objective to amend the highway to favour the developer of the campsite, or to show any bias towards the development the District Council was considering.
45. I recognise the Council had not consistently given the same response to queries it received about the highway extent (it provided different information about the highway extent in 2008). It should have updated its records when it revised its view about the highway extent in 2005, and not to do so was fault.
46. In response to our draft decision Mr X set out concerns that the decision the highway authority made about the highway extent in 2005 was wrong, as well as the decision in 2017. He explained why he considered this was the case, describing various features that he considered to be evidence of this. He felt the County Council’s 2008 position was correct. Mr X suggested that the County Council’s decision to alter the highway line in 2005 may have been made deliberately to favour a different landowner in the area.
47. I understand that Mr X feels strongly the County Council’s position about the line of the highway is wrong. However, I am not in a position to investigate the decision the Council reached in 2005. These events occurred too long ago for the Ombudsman to robustly investigate them now. In addition, the argument being made about the decisions in 2005 or 2017, concerns what the correct line of the highway should be. Mr X and the Council both hold different positions. I am not in a position to determine what the highway extent is, or if Mr X’s view or the Council’s view about the line of the highway is right or wrong. The definitive line of the highway is not a matter the Ombudsman can decide. This can only be determined in the courts. If Mr Y wishes to, he may pursue a challenge to the highway boundary with his land in the courts.
48. I should also note that regardless of the disagreement about the correct highway extent, I cannot take a view on the District Council or Planning Inspectorate’s decisions on the planning application. This is not part of our investigation.
49. In respect of record keeping, I recommend the Council reviews its guidance for officers for documenting highway extent queries. It should ensure officers are clear on it and that any decision about the highway extent is properly recorded.
50. However, any failure to record the result of the 2005 or 2008 decisions, did not of itself cause any significant injustice to Mr X or Mr Y. The complaint Mr X made was not about the Council’s record keeping for previous decisions, but the Council’s decision in 2017 about the extent of the highway.
51. Complaint Two – Mr X complains the Highway Authority failed to provide him with appropriate responses to questions about the way the Highway Authority decided the line of the highway and how the Highway Authority decided it should not object to the planning application.
52. The Council explained its approach when Mr X challenged it, commented on information he submitted and provided information about its current and past decisions about the highway extent on the lane in question. I recognise that Mr X disagrees with the process the Council followed. He believes a formal legal process should have been followed by the Council when updating its understanding of the highway extent. However, I have not found the Council failed to respond properly to Mr X’s correspondence.
53. Officer A’s consultation responses explain his view on the consultation and he set out the reasons why initially he objected and later why he withdrew that objection. Generally the Council does not engage in correspondence with third parties and members of the public about consultation responses to planning applications. Officer A engaged in correspondence with Mr X initially but later he directed him to comment to the District Council. There is no evidence to suggest this was untoward. This is a stated policy and Officer A made reference to it as correspondence from Mr X was continuing. The highway authority only acts as a consultee for planning applications, they are not the decision maker, so it is appropriate that Mr X’s concerns about the planning application or the issues it raises should be directed to the planning authority rather to a consultee.

Complaint Three – Unauthorised work to the Highway

54. The Highway Authority acknowledged that it received reports about unauthorised work to the highway from Mr X in late 2017.
55. On receipt of such reports, the Highway Authority would generally record them on its records and allocate an officer to investigate. If an issue is identified, the case would be passed to the enforcement team to consider action. The Highway Authority has discretion to determine what, if any formal action should be taken if unauthorised work has taken place. They may serve a notice under the Highway Act or, in cases of serious damage consult the police.
56. The works Mr X reported were scraping the sides of the lane, cutting back plants and possible tarmacking of land. There is evidence the Officer A passed on Mr X’s 2017 reports to the enforcement team.
57. Mr X made further reports directly to the enforcement team in December 2018. The Highway Authority says the enforcement team incorrectly passed the query to another team and when it was returned to the contact centre, it was not actioned.
58. The Highway Authority accepted it had no record of responding to Mr X’s reports. It could find no explanation for this. The Highway Authority appeared to receive no follow up or other queries until it was raised as part of the complaint in May 2019.
59. An officer visited the lane in May 2019 when the issue was raised again. The officer who visited the site found no issues with the highway that required any enforcement action.

Complaint Three – Was there fault by the Highway Authority

60. There was fault by the Highway Authority in respect of this issue. Mr X made reports of unauthorised work to the highway. The Highway Authority accepts it did not follow them up promptly to decide whether enforcement action was required. The matter was only considered after Mr X complained. The failure to consider Mr X’s reports when he made them was fault.
61. The Highway Authority found nothing that required action when an officer visited the lane in 2019, but this was some time later when some of the work from 2017 may be less visible. I understand this was frustrating for Mr X, but regardless of the fault, there does not seem evidence that the lack of enforcement visits in 2017 meant that enforcement action was not taken when it should have been. This limits the injustice to Mr X from the failure to consider the matter properly.

Agreed action

62. Within four weeks of my final decision the Council should:
• apologise to Mr X and Mr Y for not properly following up complaints of unauthorised work to the highway.
• review its guidance for officers about updating records when responding to highway extent queries. It should ensure officers are clear about the need to properly record any decision about the highway extent.

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Final decision

63. There was some fault by the Council.

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Parts of the complaint that I did not investigate

64. Mr X referred to planning decisions by the District Council and the Planning Inspectorate which considered highway access issues along the lane. The Highway Authority’s comments were relevant to these decisions. However, I should be clear that we cannot take a view whether these planning decisions were properly reached. The complaint we are considering is solely about the process followed by the highway authority.
65. I have only considered the comments the highway authority made in respect of the later planning application submitted. The first application the District Council considered was refused, causing no injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman