Summary: Mr X complains the Council will not remove an obstruction on a private road. The road is not adopted highway or a public right of way. The Council is not at fault as it has no power to remove the obstruction.

The complaint

1. Mr X complains on behalf of his mother Mrs Y that the Council has not made a neighbour remove an obstruction from a road which prevents vehicles, including emergency vehicles, getting to her home.

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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. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council;
• considered the relevant legislation and the Council’s list of streets and definitive map;
• Mr X and the Council had the opportunity to comment on a draft version of this statement. I considered the comments they sent before I made a final decision.

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What I found

7. The Supreme Court recently defined a highway as:

“The word highway has no single meaning in law but, in non-technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles.” (London Borough of Southwark v Transport for London [2018] UKSC 63.)

8. The Council can make someone remove an obstruction from the highway; but has no power where a road is not a highway.
9. There are two types of highways, roads adopted by the Council and maintained at public expense and Public Rights of Way (PROW).
10. The Council keeps a “list of streets”. This is a list of all adopted roads and roads maintained at public expense.
11. There are four types of PROWs

• Footpath- for use by pedestrians only.
• Bridleway- for pedestrians and horse riders.
• Restricted byway – pedestrians, horse riders, pedal cyclists and horse drawn carriages.
• Byway open to all traffic (BOAT) all who can use a restricted byway and motor vehicles.

12. The Council keeps the definitive map of PROWs. In certain circumstances it can amend the definitive map and add new PROWs. This can happen when an applicant proves to the Council’s satisfaction that the public have used the route for over 20 years.
13. The Natural Environment and Rural Communities Act 2006 prevented the creation of new BOATs, even if there is evidence motorised or other vehicles have used the route for over 20 years.
14. The Act provides exceptions to the above. These are:

• Where the main lawful use by the public between May 2001 and May 2006 was for motor vehicles.
• The road is on the list of streets.
• The road was created for public motor vehicle use, such as new estate roads that the Council will adopt as public highway.
• Roads built by the highway authority
• Roads used by vehicles since before 1 December 1930.

15. Landowners who need access to their land by way of a road not registered as a BOAT, may still have a private right for vehicular use on the road. The Act says the landowner must reasonably need to use the road to get to his own land and must have done this since before the Act came into force. As this is a private right the Council has no role in enforcing it.
16. A member of the public can apply to the Council to add a new PROW to the definitive map by applying for a Definitive Map Modification Order. The applicant must make the application on the correct form and provide their evidence; which can include witness statements, maps and documentary evidence. The applicant must also serve notice on the landowner and provide a certificate of service of that notice. If the applicant wants the Council to consider a new BOAT, he will have to provide evidence one of the exceptions apply. It is up to the applicant to provide the evidence, not the Council.
17. If the applicant gives the Council the completed application form and certificate of service of notice on the landowner, the Council must consider the application. If the Council refuses to make an Order the applicant can appeal to the Secretary of State.
18. If the Council makes an Order, or the Secretary of State makes it on appeal, this is not the end of the process. The Council must then advertise the Order and anyone can object to it. If anyone does object an Inspector appointed by the Secretary of State, will decide if there is enough evidence for an Order.

What happened

19. Mrs Y and her husband live on a private road. To drive to their home from one adopted highway they cross part of the private road owned by neighbours.
20. In 2017 the neighbours erected gates across the part of the road they own preventing vehicle access to Mrs Y’s home from this direction. Mrs Y says she cannot drive to her home from the other direction because of the narrowness of the road and its layout. She says the gates also cause problems for other people’s vehicles.
21. Mr X asked the Council to intervene and get the gates removed. The Council told him it had no power to intervene because the private road is neither adopted highway nor a PROW. I have checked and the road is not on the list of streets and is not on the definitive map.
22. Mr X queried the Council’s view as the road has a lamppost and a street name sign. The Council replied this did not make it an adopted highway. Most private roads have a street name sign, and many have lampposts maintained by a council.
23. Mr X told the Council he thought at least one of the exceptions to the creation of a new BOAT applied. The Council replied it did not consider the exceptions applied. It told Mr X if he thought one of the exceptions applied, he could make an application for a Modification Order and provide his evidence.
24. Mr X wants the Ombudsman to consider if one of the exceptions applies. He says the road has always been used by motor vehicles. He says the Council’s own Highways Department commented on its use by vehicles in response to a planning application. He says satellite navigation systems show the road and direct people down it.
25. Mr X also says the Council told residents on another private road to remove bollards so fire engines can have access. He says if the Council could intervene in that case, it can intervene to help Mrs Y.

Findings

26. I acknowledge Mrs Y’s distress at the situation and her concern about access for emergency vehicles. However, I cannot say this is due to fault by the Council.
27. The road Mrs Y lives on is not an adopted highway or PROW. The Council has no power to make the neighbour remove the gate. I cannot comment on what happened in another street of the same status, as I have not investigated this. I do not intend to investigate it as it does not affect how the Council dealt with Mr X. It correctly told him the status of the road and that it had no power to remove the gate.
28. The Ombudsman cannot say if any of the exceptions apply to making the road a BOAT; only the Council or the Secretary of State can do this. If Mr X wants the Council to consider this, he must make an application for a Modification Order. I acknowledge this is a lengthy and uncertain process but there are no other ways of achieving what Mr X wants. I have no right to consider or suggest what the outcome of any such application might be. I can say that without such a Modification Order the road does not have highway status and the Council cannot make someone remove an obstruction from it.
29. Mrs Y may have the right to use vehicles on the road in her deeds. She may also have some private rights of access under the Natural Environment and Rural Communities Act 2006. These are private law matters between Mrs Y and her neighbour. The Council cannot help her with this. Mrs Y would need to seek her own legal advice.

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Final decision

30. I have seen no evidence of fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman