Summary: Mr X complained there was fault in the way the Council’s highways team dealt with his request to extinguish part of a right of way. Mr X’s request followed on from contact he had with the ASB and planning teams. I did not find there was fault by the highways team.

The complaint

1. Mr X complains the Council’s Highways Team failed to properly communicate with him about a fence he erected and the need to stop up part of the highway.
2. Mr X says an officer refused to communicate with him in writing and would not liaise with other departments to understand the background to the situation.
3. Mr X complained that the highways team acted unreasonably, intimidated him and tried to extort fees from him.

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The Ombudsman’s role and powers

4. 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’. 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)
5. If we are satisfied with an organisation’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

6. I considered Mr X’s complaint and the information he provided. I asked the Council for information and considered its response to the complaint. I took account of the Highways Act and procedures for dealing with extinguishing highways.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Highways Act 1980

8. Section 116 of the Highways Act allows an application to be made to the magistrates court to extinguish a right of way or part of a right of way.
9. Section 118 of the Highways Act 1980 allows a council, by an order, to stop up a footpath which is designated as highway.
10. When a footpath (or part of a footpath) is 'stopped up' or extinguished, it means that the public no longer has the right to use it. If a footpath has not been extinguished, councils have a duty to maintain rights of way over it and to ensure it is not blocked.
11. There is a prescribed form for an applicant to send to the Council under Section 118 and the application must be accompanied by a map showing the impact on the footpath. Upon receipt of a valid application, and provided the Council agrees it is appropriate to do so, the Council makes the order.
12. Once the order is made, and prior to it being confirmed, the Council must give notice to other organisations and people with an interest. The law requires the Council to publish a notice in a local newspaper and to post site notices. If, after 28 days representations or objections are received, these must be considered before the order is confirmed. Where there is opposition to an order, it is considered by an inquiry.
13. Councils normally expect the applicant to pay the full costs of an application to extinguish the highway.

Background

14. In July 2019 Mr X contacted the Council about anti-social behaviour (ASB) in the area immediately outside his home. Mr X explained the problem and how the ASB was affecting him and his family.
15. In August 2019 the Council wrote a brief report noting the high levels of ASB in this location. The report suggested, amongst other things, that a triangular area of paving next to Mr X’s property be enclosed to reduce ASB. This was because a group congregated there on a regular basis.
16. In February 2020 the ASB Officer wrote to Mr X to set out the ASB team’s view. It referred to Mr X fencing in the triangular area. It stated “It is our opinion in Community Safety that by your fencing the small triangular area of land next to [your property] it is likely to reduce or prevent ASB and people congregating. However, this is subject to and must not breach any conditions relating to land registry and planning legislation. Therefore, you are not permitted to block or obstruct the footpath or public right of way next to [your property]. Planning Enforcement have advised that any fencing or boundary should not exceed 2m, or 1m if facing the public highway. The Council will not fund the provision of this fencing.”
17. Mr X contacted the planning enforcement team in March 2020 asking for contact to discuss and agree what was required to fence off the triangular piece of land. He received no reply. In Autumn 2020 Mr X told us he erected a fence around the land.
18. The Ombudsman considered a separate complaint from Mr X about the way the planning enforcement team dealt with the matter. Ultimately, the planning enforcement team decided it would not be appropriate in planning terms to take any action about the fence Mr X had erected. However, as the triangular area Mr X fenced off was designated as highway, the Council directed him to contact a Highways Officer. This was to discuss what was required in highways terms. They provided an officer’s contact details (I refer to that officer as Officer B in this statement).

What happened

19. Mr X contacted Officer B on 6 July. He stated he had been asked by the Council to contact her, and he asked what information she needed. The officer introduced herself and explained her role. She told Mr X she did not know the issues that related to his property and asked Mr X if they could speak to understand the situation. Mr X briefly described contact with the ASB and Planning teams and asked her to contact them. He stated he wanted to ‘formalise the changes to the footpath on the adoption papers’ and discuss the design of the footpath. Mr X did not wish to speak on the phone.
20. Correspondence continued, with Mr X asking Officer B to speak to other departments and Officer B seeking a conversation with Mr X to clarify matters. On 7 July the officer stated she would be unable to assist him with regards the path without speaking to him. In response, Mr X explained further background and sent copy correspondence. This enabled the officer to consider the matter.
21. I understand Officer B discussed the situation with colleagues and a manager carried out an impromptu site visit.
22. On 28 July Officer B told Mr X that in order to extinguish the rights of way over the triangular section of land, an order would be needed under either Section 116 or 118 of the Highway Act 1980. It should be noted that Mr X only wished to extinguish the rights of way over the triangular section of land. A footpath would still exist alongside it to allow pedestrians to pass by his property.
23. Officer B responded to points Mr X made in his email about ownership and adoption. She noted the letter from the ASB team agreed that fencing the area would reduce or eliminate ASB, but any action taken had to meet the relevant legislation. She noted that the only way to formalise the change to the footpath was by an Order she had referred to.
24. Officer B stated the Highways Authority had a duty to determine if it was in the public interest to extinguish the right of way over the triangular piece of land before deciding if it could agree to the order. She stated that the costs of applying and making an order had to be borne by the applicant, in this case, Mr X.
25. Officer B confirmed that, having considered his situation, the Council would support and process an application for an extinguishment order.
26. Officer B stated, at that time, because no permission had been granted to extinguish the right of way, Mr X’s fence was illegal, but an application to could be considered retrospectively and, provided it was submitted there would be no need to remove the fence. If no application was received, enforcement action may be taken to remove the fence.
27. In early August Mr X requested the required forms to extinguish the highway rights over the triangular piece of land.
28. Officer B responded on 5 August setting out the likely costs and commenting on the process and the law. She set out two options and the costs that would apply in each case.
29. The required forms were provided to Mr X on 20 August.
30. On 5 October Mr X complained to the Council. I have not repeated the complaint here in detail. However, it broadly concerned:
• Officer B’s request to speak with him before acting and her refusal to speak to other departments to understand the background.
• The Council’s statement that the fence was illegal, despite the ASB team authorising it.
• Officer B’s suggestion that the Council may take enforcement action and the explanation of the Council’s powers to require the removal of the fence. Mr X considered this was to intimidate and the Council’s unspecified charges of over £5800 was an attempt to extort money from him.
• That Officer B unreasonably declined to send the required forms to him and had referred him to another officer, before sending forms herself.
31. The Council responded to the complaint and the concerns Mr X made about communication. The Council acknowledged the Officer B could have consulted the other departments Mr X had contact with to establish the background. However, it considered she had sought more background from Mr X in order to deal with his queries and overall her responses had been appropriate.
32. The Council noted that the letter originally sent by the ASB team did not give permission for the fence to be erected, it had no powers to permit fencing off the highway. The Council apologised if the letter was not as clear as it could have been.
33. In terms of the footpath, the Council explained some background to Officer B’s comments about adoption and the footpath and explained why it considered narrowing the path was unacceptable. It also commented on the site visit a manager conducted.
34. In terms of the key issues; the fence and the extinguishment of the right of way, the council clarified that in legal terms, the fence was illegal because at present it blocked part of a right of way. It did not agree Officer B had been ‘threatening’. The Council ran through the correspondence about the extinguishment and summarised the council’s position that it would agree to support the extinguishment of the right of way, but Mr X would need to make an application to do so, and costs would be payable.
35. The Council found Officer B had been professional and provided correct information in a timely manner.

Was there fault by the Council

36. I recognise that Mr X was unhappy when Officer B asked to speak to him to establish what he needed from the highways team, rather than speaking to other departments. It would have been useful for Officer B to know the background, however, as the highways department had relatively little involvement in the matter before July 2021, it was not unreasonable that the officer asked to speak to Mr X.
37. Speaking to someone at the outset can help clarify exactly what the issues are, speed up decision making and help avoid misunderstandings, so it was not fault that the officer initially took this approach. I note, at one point the officer did say she could not help without speaking to Mr X. However, when Mr X provided background information, the officer was able to act on it and provide a response, so this did not lead to any injustice to Mr X. I found no fault in Officer A’s approach overall.
38. The law sets out a process for applying to extinguish some or all of a right of way. This is a formal process which requires notices to be posted and the proposed changes to be advertised so that any objections can be heard. There is a cost to this. The Council explained the process to Mr X appropriately.
39. Because Mr X had erected a fence which limited the right of way, before going through the legal process to extinguish it, the fence is, at present illegal. It constitutes an obstruction to part of the highway. While I understand Mr X erected the fence for good reasons, the information the Council provided about the process for extinguishing a right of way, the costs and the present legal situation were correct. I do not consider the setting out of these facts to be threatening or that the Council set out to intimidate. It explained the situation following Mr X’s enquiry.
40. I recognise because of the background to this issue there was some confusion about the process Mr X should follow and who he should contact but I do not consider there was fault in the Council’s response to Mr X’s requests for authorisation to extinguish part of the right of way.

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Final decision

41. I have not found fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman