Summary: Mr X complained about the Council’s failure to take action over a car dealership which is parking vehicles on the private road where he lives. 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, complained about the Council refusing to take enforcement action over a car dealership which parks cars for sale over part of the footway in the private close where he lives. He says the Council should treat the road as a public highway by established use and keep the footway clear.

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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. Mr X has commented on a draft copy of my decision.

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What I found

4. Mr X says a car dealership which is based near the corner of his cul de sac parks cars on its frontage and also across part of the footway which is on his private road. He wants the Council to take action and serve penalty notices on the cars which cause an obstruction. He told the Council that the public has been using the footway for more than 20 years and so it should be accepted as a public right of way by established use.
5. The Council says the land is private and it has not had a claim as a public highway submitted or an agreement of dedication as a public highway by the owners. It says caselaw had confirmed that a highway authority carry out enforcement on private land. The Council is not satisfied that the public, persons other than the private residents, have enjoyed public access over the land to meet the test of usage.
6. 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. In this case the Council has considered the legal implications of taking enforcement action on private land and it does not consider it to be possible.

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Final decision

7. 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