Summary: We will not investigate Mr X’s complaint about alleged negligence, and trespass and damage to his land by a Council contractor carrying out licenced works to a public highway. The courts are better placed to consider this complaint.

The complaint

1. Mr X complained the Council was negligent in its duty by agreeing a licence with a contractor for work to a public highway, without checking the Council owned all the land first. He says the contractor has since trespassed on and damaged his land. He wants the Council to correct its adopted highway plans.

Back to top

The Ombudsman’s role and powers

2. We investigate 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 or continue an investigation if we decide there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)

Back to top

How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. A section 278 agreement (or s278) is a section of the Highways Act 1980 that allows developers to enter into a legal agreement with a Highway Authority to make permanent alterations or improvements to a public highway, as part of a planning approval.
7. Mr X says the Council was negligent as it did not complete appropriate checks before entering into a s278 agreement with a contractor. He says the Council does not own all the land the agreement refers to, and Council contractors have trespassed and caused damage to his land.
8. In its complaint response, the Council said the s278 agreement allowed the contractor to carry out work to the public highway. It said the agreement did not extend to any non-highway land. It could not comment on any work carried out outside this agreement.
9. We will not investigate this complaint. The courts are better placed to consider disputes about land ownership, the extent of the adopted highway and liability for damages. We cannot decide whether the Council was negligent or whether it is liable for any damage caused to Mr X’s land. Only the courts can do this. If Mr X considers the Council liable for damage to his land, he can make a claim through the Council’s insurers. If he is dissatisfied with their response, it is reasonable for him to take the matter to court.

Back to top

Final decision

10. We will not investigate Mr X’s complaint because the courts are better placed to consider this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman