Decision : Closed after initial enquiries
Decision date : 11 Jan 2018
The Ombudsman's final decision:
Summary: we will not investigate this complaint that the Council wrongly gave permission for a gate to be erected across an access road leading to Mr X’s home. The injustice he has suffered is not significant enough to justify an investigation. And he may go to court if he thinks the Council acted beyond its powers.
- The complainant, who I have called Mr X, complained that Lancashire County Council wrongly gave permission for a gate to be erected across a road that leads to his home.
The Ombudsman’s role and powers
- 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 the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I have considered Mr X’s complaint and the Council’s response to it. I have considered Mr X’s response to a draft of this decision.
What I found
- In 2017 the Council gave permission for a gate to be erected across the access road that leads to Mr X’s home. It did so to prevent the landowner’s horses escaping onto the main road.
- The Council gave permission for the gate under section 147 of the Highways Act 1980. Mr X said this section of the Act relates only to agricultural land, but the land in question is not agricultural. And the landowner has had horses on the land for more than 25 years without a problem.
- Mr X said the Council acted ultra vires (beyond its powers) when giving permission for the gate. He said it would be costly to take legal action about this.
- Mr X said he and his neighbours must now stop and open the gate every time they wish to leave or return to their homes by car. In addition, they have elderly relatives who have difficulties opening the gate. So Mr X and his neighbours have to arrange to open the gate for their relatives when they arrive and depart. And, as the access road is also a public right of way, walkers are affected by the gate.
- I recognise that it is inconvenient for Mr X and his neighbours to open and close the gate whenever they leave or return to their homes by car. I also recognise that it is inconvenient for them to open and close the gate for elderly relatives. But this injustice is not significant enough to justify an investigation.
- If any walkers are unhappy about the new gate they may make their own complaint. However, it is not uncommon for walkers to come across gates and other barriers on public footpaths. So their injustice is unlikely to be significant.
- Mr X said the Council acted ultra vires. That would be a matter for the courts to decide, not the Ombudsman. I accept that it may be costly to take legal action. But I think it would be reasonable for Mr X to take court action if he wants a determination of whether the Council acted beyond its powers.
- We will not investigate this complaint for the reasons given in paragraphs 9 to 11.
Investigator's decision on behalf of the Ombudsman