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North Lincolnshire Council (17 013 816)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 04 Jan 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr X’s complaint that the Council failed to remove an obstruction to a public right of way. It would be reasonable for him to serve notice on the Council to remove the obstruction and to apply to the magistrates’ court for an order requiring action if it does not comply.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council allowed a third party to obstruct a public right of way and has not responded to his complaints about the issue.

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The Ombudsman’s role and powers

  1. 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

  1. I reviewed the details of Mr X’s complaints and the provisions of the Highways Act 1980. I shared my draft decision with Mr X and considered his comments.

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What I found

  1. Section 130 of the Highways Act 1980 places a duty on local highway authorities to assert and protect the rights of the public to the use and enjoyment of highways under their control. This may include taking action to remove obstructions from the highway to allow safe passage by members of the public.
  2. Mr X complains the Council has failed to comply with its duty by allowing a third party to obstruct a public right of way. He has written to the Council to complain about the issue but has received no response.
  3. The Ombudsman will not investigate this complaint. Section 130A of the Highways Act 1980 allows Mr X to serve notice on the Council to remove the obstruction he complains about. If the Council fails to act within one month he may, under Section 130B, apply to the magistrates’ court for an order requiring the Council to take action. This process is designed to deal with the type of issue Mr X complains about and I consider it reasonable for him to use it in this case.
  4. Although Mr X also complains about the Council’s failure to respond to his complaints the Ombudsman will not investigate this issue in isolation. It is peripheral to Mr X’s main concerns about the obstruction of the right of way and his injustice comes from the Council’s failure to act, rather than its failure to respond to his complaints.

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Final decision

  1. The Ombudsman will not investigate this complaint as it would be reasonable for Mr X to serve notice on the Council and apply to the magistrates’ court for an order requiring it to remove the obstruction.

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Investigator's decision on behalf of the Ombudsman

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