Summary: We will not investigate this complaint about the Council’s decision to issue a licence allowing the complainant’s neighbour to put a plant pot on part of the highway. This is because there is insufficient evidence of fault by the Council and insufficient evidence of injustice. In addition, the complainant could take legal action.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council issued a licence allowing a neighbour to keep a plant pot on the highway. Mr X says the pot blocks the path and access to his drive. Mr X wants the Council to revoke the licence and force his neighbour to remove the pot.

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint,

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

3. People can appeal to the magistrates if they believe the Council has failed to remove an obstruction on the highway. The person must demonstrate the object presents a danger.

Back to top

How I considered this complaint

4. I read the complaint and the Council’s responses. I considered emails Mr X sent to the Council and photographs of the pot and the street. I considered comments Mr X made in reply to a draft of this decision.

Back to top

What I found

Obstructions on the highway

5. Obstructions on the highway can present a risk. The Council can take enforcement action depending on the nature of the obstruction and the degree of risk. The Council can issue a licence which allows someone to place an item on the highway provided they comply with the terms of the licence.

What happened

6. Mr X reported to the Council that his neighbour was obstructing the highway with two plant pots. He said the pots could damage his car or harm his child. The Council initially asked the neighbour to remove the pots but then decided to grant a licence. There was an error with the licence which meant the Council had to issue a second licence.
7. The current position is that the neighbour has removed one pot but has a licence to keep a small pot (maximum height of 20cm) on the service strip at the edge of her property.
8. Mr X complains that rather than forcing the neighbour to remove the remaining pot it has issued a licence. He says the obstruction remains and blocks access to the corner of his property. He wants the Council to withdraw the licence and make the neighbour remove the pot. When I spoke to Mr X he said he would take legal action to get the obstruction removed. He also says the Council has committed fraud by false representation in relation to the licence.

Assessment

9. I will not start an investigation because there is insufficient evidence of fault by the Council. This is because qualified road officers have assessed the highway and the pot and decided that it is appropriate to issue a licence rather than take enforcement action. This is one of the range of actions it was open for the Council to take and it is not my role to question the professional judgement of highways officers.
10. I also will not start an investigation because there is insufficient evidence of injustice. I have looked at photographs of the pot; it is a small pot situated on the corner of a service strip. It does not obstruct Mr X’s drive or have any impact on Mr X’s property. In addition, the error in the first licence has been corrected and did not have an impact on Mr X. And, if Mr X feels the Council has committed fraud then that is a matter for the police.
11. Finally, I will not start an investigation because Mr X could take legal action. He would need to consider whether the pot causes a significant obstruction and he may wish to take legal advice about whether the licence would prevent him from pursuing the matter in court.

Back to top

Final decision

12. I will not start an investigation because there is insufficient evidence of fault by the Council and insufficient evidence of injustice. In addition, Mr X could consider if he has grounds to take legal action.

Back to top

Investigator's decision on behalf of the Ombudsman