Summary: Mr X complained about the Council’s failure to take action over the obstruction of the footway by café furniture outside a café business in his town. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault on the Council’s part which would warrant an investigation.

The complaint

1. Mr X complains that the Council has failed to include planning conditions to prevent café proprietors from placing café furniture on the pavement under the canopy of a building in his town. He says the Council should protect the rights of the public to use the highway without obstruction.

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The Ombudsman’s role and powers

2. 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:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response and Mr X has commented on the draft decision.

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What I found

4. 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.
5. Mr X complained to the planning authority stating that the planning approval had not included the land under the canopy and that the owners had no permission for the furniture. The Council eventually served a breach of condition notice on the café owners. They responded to the requirements of the notice by submitting a retrospective planning application for use of the frontage for street furniture. The Council approved the application.
6. The land in question is registered as highway land by the County Council which is the highway authority. It does not agree with Mr X that a right of way exists over the land but says the owners require a street café licence for the furniture. This is not within the remit of the planning authority and Mr X has made a separate complaint against the County Council.

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Final decision

7. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault on the Council’s part which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman