Decision : Closed after initial enquiries
Decision date : 16 Mar 2018
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s failure to take action over an obstruction to the footway outside a cafe in his town. The Ombudsman should not investigate this complaint. This is because Mr X has served a notice on the Council under the Highways Act 1980 and he has a legal remedy in the Magistrates Court if the Council fails to act.
- Mr X complains that the Council has failed in its duty as highway authority to make café proprietors remove café furniture placed on the pavement under the canopy of a building in his town. He says the Council should assert and protect the rights of the public to use the highway without obstruction.
The Ombudsman’s role and powers
- 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)
- We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- I have considered all the information which Mr X submitted with his complaint and he has commented on the draft decision.
What I found
- Mr X says owners of a café began placing chairs and tables on the pavement under the canopy of the listed building which has been used previously by the public for many years. He says the furniture is obstructing the footpath which was used freely by previous generations. In recent months, the width of the footway has been further reduced by the placing of advertising boards on the remaining clear route.
- Mr X complained to the local planning authority and this is the subject of a separate complaint to the Ombudsman. He also complained to the Council as highway authority. He suggested that he would apply for a modification order to have the footway included on the Council’s Definitive Map. The Council informed him that the area is already considered to be a footway on its list of streets and that the owners are required to apply for a street licence to put furniture on it. The Council said that once the owner’s application for planning change of use was resolved it would require a licence for the furniture to remain.
- Mr X was unhappy with the Council’s response and served a notice under Section 130 of the Highways Act 1980 requiring the Council to remove the obstructions from the highway. The Council told him that it does not consider the notice to be appropriate in the circumstances and that it would resist any further action in the court.
- Mr X has a right to issue a further notice under section130B of the Act which takes the matter to the Magistrates Court for a decision on the Council’s failure/refusal to remove the obstruction.
- Where a complainant has an alternative remedy by way of court action and he has initiated that remedy the Ombudsman has no jurisdiction to investigate. Mr X has started the section 130 procedure and the Ombudsman will not consider this matter further. The Magistrates Court can decide whether the highway is obstructed and what action should be taken by the highway authority.
- The Ombudsman should not investigate this complaint. This is because Mr X has served a notice on the Council under the Highways Act 1980 and he has a legal remedy in the Magistrates Court if the Council fails to act.
Investigator's decision on behalf of the Ombudsman