Summary: The Ombudsman will not investigate Mrs X’s complaint about an obstruction to the public highway. This is because there is not enough evidence of fault by the Council or injustice to Mrs X. It is also reasonable for Mrs X to use the legal remedy available to her.

The complaint

1. The complainant, whom I shall call Mrs X, says her neighbour has placed large stones on a grass verge which forms part of the public highway. Mrs X says the stones make it difficult to enter and leave her own property by car. Mrs X says the situation is inconvenient and dangerous.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, 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, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

Background

6. Mrs X has complained to the Council about large stones on a grass verge which is part of the public highway. The verge is close to Mrs X’s home and she says the stones make it difficult and dangerous to enter and leave her property by car.
7. In its responses to Mrs X’s complaints the Council has said:
• If it believes there is an immediate danger from items on the public highway it can remove them. If the item is causing a ‘nuisance’, it can talk to the owner. If the items are not removed it can serve a Notice under the Highways Act and proceed to the Magistrates Court for a removal and disposal order. But the Council needs to consider if the nuisance is great enough to justify the cost of serving a Notice and making an application to the court.
• The stones have been there for some time and the verge is situated back from the main carriageway in a wide area. It therefore considers the stones to be a nuisance rather than a danger.
• The Council has visited the area and asked Mrs X’s neighbour to move the stones back from the highway. It said that during a second visit the stones had been moved.
8. Unhappy with the Council’s response, Mrs X complained to the Ombudsman. She says the stones have now been returned to their original location and are again causing a problem. Mrs X is also concerned a recently approved planning application will make accessing / exiting her property even harder.

Assessment

9. The Ombudsman does not investigate all the complaints we receive. To decide whether to investigate we need to consider various tests. These include the likelihood of finding fault and the alleged injustice to the person complaining. We also need to decide if there is an alternative remedy available to the person complaining, which is more likely to provide the desired outcome.
10. The Council has considered Mrs X’s concerns, visited the site, and decided formal action is not appropriate. This is a decision the Council is entitled to take. The Council has asked Mrs X’s neighbour to move the stones. If they have now been returned to their original position, this is due to Mrs X’s neighbour, not the Council. The planning application Mrs X refers to is an ‘outline’ decision. This means the exact nature of the development has not yet been decided. We can only look at whether the Council considered relevant information available at the time of Mrs X’s complaint.
11. I understand Mrs X is frustrated by the issue at the heart of her complaint. But on balance, I do not think there is enough evidence of fault by the Council, or significant personal injustice to Mrs X, to warrant an investigation by the Ombudsman.
12. Also, the Highways Act 1980, places a duty on the Council to protect the rights of the public to the use and enjoyment of highway land. If a member of the public believes the Council has not fulfilled its duty, in this case by allowing Mrs X’s neighbor to obstruct the public highway, she may serve notice on the Council under Section 130A of the Act. If the Council does not remove the obstructions to Mrs X’s satisfaction, Section 130B allows her to apply to the magistrates’ court for an order requiring further action. I see no reason Mrs X should not use the legal remedy available, and it would potentially give her the outcome she seeks. The exception at paragraph 4 therefore applies.

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Final decision

13. The Ombudsman will not investigate Mrs X’s complaint. This is because there is not enough evidence of fault by the Council or injustice to Mrs X. It is also reasonable for Mrs X to use the legal remedy available to her.

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Investigator's decision on behalf of the Ombudsman