Summary: Mr C says the Council is at fault for its failure to progress an application to stop up a section of verge on a road which borders his property. He says the Council agreed to progress the application and stopped without good reason. He says this caused him injustice because he incurred expense by arranging surveys and entering into agreements with utility companies. He says the process has also caused him distress and taken a lot of his time. The Council was at fault for administrative errors and a failure to explain its decision-making process. It should write to Mr C explaining its reasoning and pay him a sum in recognition of his distress, time and trouble.

The complaint

1. The complainant, who I have called Mr C, says the Council agreed to apply for a ‘stopping up order’ to allow him to use large verges along a road that runs past his house. He says the Council made numerous errors in bringing the application and has now gone back on its agreement.
2. Mr C says this has caused him injustice in that he spent money and time in preparing for the application and will not now benefit from it.

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What I have investigated

3. The facts behind this complaint stretch back for some 20 years. Mr C says the Council wrongly claims that the land involved in this complaint had historically been part of the highway.
4. The Local Government Act says we cannot investigate complaints about historical matters without good reason. I have decided there is no good reason to investigate the history of the complaint. Mr C could have come to the Ombudsman 20 years ago. Now, given the passage of time, it is unlikely that anyone remains at the Council with knowledge of the events and the Council is unlikely to have adequate records of the events.
5. I have, however, used the Ombudsman’s discretion to investigate Mr C’s allegations of fault stretching back until 2015. I have done so because it was in 2015 that the Council first agreed to progress an application to the Magistrates Court for Mr C. Since then, he has been in regular contact with the Council and there has been a single chain of events stemming from that original agreement.

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The Ombudsman’s role and powers

6. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
8. 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

9. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the Council’s response, the available evidence, and the relevant law.
10. Mr C 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

What should happen

Highways

11. The Council says it is under a general statutory duty under the Highways Act 1980 to assert and protect the rights of the public to the use and enjoyment of any highway within its administrative area. It also has a specific statutory duty, under section 130(3) to prevent, as far as possible, the stopping up or obstruction of the highways for which it is responsible. (Highways Act 1980 s.130)

Stopping up orders

12. The Council describes the stopping up order process in this way in the officer report which led it to make an agreement with Mr C:

• Any person can request a highway authority to make an application to a magistrates’ court to stop up a highway or part of a highway under s116 Highway Act 1980 on the ground that the highway is unnecessary.
• Section 117 of the 1980 Act provides the Council with powers to recover its reasonable costs for making such an application.
• When considering whether to make an application to stop up a highway, the highway authority should consider any objections it receives during a statutory consultation on the application. If, on the balance of evidence, the highway authority cannot demonstrate to the magistrates' court that the highway is "unnecessary", the application should not be proceeded with.
• In particular, it should be observed that parish councils have a right of veto to s116 Highways Act 1980 applications.
• The successful making of a stopping order will extinguish the highway rights over the land concerned and control over the land will revert to the freehold or leasehold owner of the subsoil.

Principles of good administration

13. The Ombudsman issued guidance on the Principles of Good Administration in 2018. This document sets out key principles, and examples of good administrative practice. Among these are:
• Keeping proper and appropriate records,
• Explaining the rationale for decisions clearly and recording them, and
• Stating the criteria for decision making and giving reasons for decisions.

What happened

Background

14. Mr C lives in a rural part of the Council’s area near a single-track, no-through road. Where the road passes his house, the verge is particularly wide. Mr C says he carried out searches at the Land Registry before buying his property twenty years ago. He also says he asked the Council if they had any interest in the land. He says the Council said it did not. Shortly after he had bought the property, he says, it contacted him to tell him it had made a mistake and that, in fact, the verge, stretching back for some 30 metres from the carriageway was part of the highway and therefore for the Council to manage and control.
15. The Council says records show that this was the case historically but that, over the years, parts of the verge were enclosed by landowners and trees grew and so the highway became smaller. It says that at some point in the early 2000s, the Council’s highway records were tampered with to show a much-reduced highway. There is now, therefore, uncertainty as to the true extent of the highway.
16. As is stated above, I have not considered whether the land was, historically, part of the highway in this decision. I provide this detail for background purposes only. It is only important to this decision because the dispute continued until 2014 when the Council considered what actions to take to try to settle the dispute.
17. In 2014, a Council officer wrote a paper considering what action, if any, the Council should take. The options were:
1. To take no further action and resolve the dispute at a later date.
2. To allocate a budget for further investigations into the matter and then decide what to do; or
3. ‘Bearing in mind the unusually wide expanse of what is believed to be highway, the very few properties reached from [the road] and the fact that it is not a through route for vehicles, it is thought reasonable to conclude that the highway rights could be reduced to the carriageway and a narrow verge.
18. The officer recommended option c providing Mr C undertook to fund the process which, he said, was likely to cost £3,000 to £4,000.
19. In the ‘implications’ section, the officer wrote ‘There are no detrimental financial implications to the recommended option to the removal of highway rights on this land. The applicant will fund all legal costs in the order and accept full maintenance liability for the land. As there is no transfer of ownership of land, there is no compensation’.
20. The Council put this proposal to Mr C in November 2014 and he agreed to pay for the costs of the application. He met with a Council officer in June 2015 who said, in an email sent after the meeting, ‘I outlined the process that would need to be followed to stop up the highway (or part of it). Amongst other things, we would have to advertise the proposal and apply to the magistrates’ court on your behalf, but the process would have to paid for by you. We would require payment in advance…. I explained there is no guarantee of success and the costs vary depending on objections etc. I explained that if the attempt is unsuccessful or discontinued, payment would still have to be made for work carried out.’
21. Mr C’s neighbour, Mr N, is affected by the same issue as the extensive verges are on both of their land. Mr N joined Mr N in agreeing to fund the applications.
22. It was not until November 2017, nearly two and a half years later, that the Council finally made the first application to the Magistrates Court. It told Mr C the application would be heard in late February 2018 though it later told him that this hearing would be until April 2018.
23. The April application was later withdrawn too because of changes in what was to be agreed.
24. The Council made a further application which was due to be heard in January 2019. The Council failed to pay for the postage on notices to consultees. This meant that the post office did not deliver them but insisted that people go to their local post office and pay £2 to receive the letter. As some had not done so by the time of the hearing, the Council withdrew this application too.
25. The Council rescheduled this application to be heard in March 2019. There were several objectors to the application. One week before the hearing, the Council withdrew this application too.
26. Mr C wrote to the Council a week after the cancelled hearing date asking for an update and a meeting to find a way forward. He wrote to the Council on numerous occasions after the March application was withdrawn.
27. In late 2019, Mr C complained to the Ombudsman. In January 2020, the Council informed him that it had decided not to proceed in March 2019 because of ‘unresolved objections’.

Was there fault causing injustice?

Delay

28. The Council was responsible for delay during the course of this process. This was fault. The Council says it had other priorities and progressed the case as quickly as possible.
29. While accepting that making such an application is a complicated matter, requiring plans to be agreed and all relevant parties to be contacted, I do not find that this was the case. During that period, Mr C wrote to the Council on 11 occasions after hearing nothing for more than a month asking for an update. On one occasion, he left nearly six months during which no action seems to have occurred. This was unacceptable delay and therefore fault.
30. It should be noted that one company consulted about the application told the Council the law had changed between the initial contact asking them if the company had any objection to the stopping order in 2015 and the hearing date in early 2018. They said, initially, that this would mean it would have to charge Mr C £100,000 to carry out works which would not previously have been necessary. The company did not ultimately charge Mr C but this must have been frustrating for Mr C and illustrates the extent of the delay.

Process errors

31. When the Council sent out notification letters in January 2019, it failed to pay the postage on the letters sent out. This meant that consultees did not receive their letters and the hearing had to be vacated. This was administrative fault.

Agreement

32. The Council suggested to Mr C that it should apply for a stopping up application in 2015 as a way of resolving a dispute between the two parties. Mr C agreed to this although he has always maintained that the Council’s claim that the majority of the area in question was ever highway is false.
33. The agreement was intended to resolve the dispute and it was, therefore, implicit in the agreement that the Council would use its best endeavours to ensure that the application was, in fact, made.
34. The Council withdrew the application in March 2019 on the basis that there were outstanding objections. It said, in its emails to affected parties in April 2019, ‘…due to the number of unresolved objections from the general public, the Council withdrew its application…’
35. This does not square with the Council’s statement in 2014 that ‘If, on the balance of evidence, the highway authority cannot demonstrate to the magistrates' court that the highway is "unnecessary", the application should not be proceeded with’ (my emphasis added).

Record keeping

36. The Council claims it considered all the objections on their merits before deciding to withdraw. However, it says ‘We cannot provide you with documentary evidence of the council’s thinking … because its thinking was not documented at the time’. I have been through the records provided by the Council and have found no record of a full consideration of the merits of the objections.
37. The Ombudsman makes his decisions on the balance of probabilities. We cannot, therefore, accept the Council’s statement, unsupported by other evidence, that the Council has fully considered all the objections to the stopping up order. The failure to fully consider and record that consideration, was fault.
38. In our Principles of Good Administration, the Ombudsman states that councils should clearly record the rationale for decisions made. The Council did not do so in this case. This would lead Mr C to believe that the Council has not fully supported him in his application.
39. The Council also says that, even if it had chosen to withdraw the application based solely on the number of objections, which it did not do, that would be within the scope of the lawful exercise of the discretion vested in the highway authority.
40. I do not accept that that can be a sound principle of administration. Further, even if I were to accept this rationale, the Council said, in 2014, in its email to Mr C, that it would make any decision to withdraw on the balance of the evidence. Therefore, a failure to consider the evidence in this case would be fault. It would be going back on an undertaking to Mr C.
41. I find that this fault caused Mr C an injustice as he has no certainty that the Council has considered this matter fairly and fully.

Costs

42. The Council suggests that, since it initially entered into this agreement with Mr C, it has suffered budgetary constraints which have changed its priorities. However, this cannot be a relevant consideration. The Council is still engaged in the same agreement that it made in 2015 only to withdraw if withdrawal is justified on the balance of the evidence.

Communication

43. The Council’s communication with Mr C has been poor throughout. It has failed to contact him at all for months on end and has not explained its thinking to him to this day. After an officer in the transport department left in early 2019, Mr C contacted the Council on numerous occasions trying to progress the matter but received no response for months. This was fault.

Agreed action

44. The Council has agreed write to Mr C within two weeks of the date of this decision and apologise to him and pay him £500 for his time spent and distress and trouble suffered.
45. the Council has agreed that, within two months of this decision, it will write to Mr C explaining the rationale for its decision to withdraw the application by explaining the merits of each of the objections.

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Final decision

46. I have decided the Council was at fault. I have closed my investigation.

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Parts of the complaint that I did not investigate

Mr C says the Council is at fault for wrongly claiming that the verge had been part of the highway historically. I have not investigated this part of Mr C’s complaint.

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Investigator's decision on behalf of the Ombudsman