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Shropshire Council (19 002 080)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 06 Jan 2021

The Ombudsman's final decision:

Summary: Mrs B complains that the Council wrongly sold her neighbour a piece of land between their properties which forms part of a public right of way and then failed to prevent the neighbour blocking up the passageway. She also says the Council delayed in resolving the matter and in responding to her complaint. We find the Council was at fault in wrongly including the passageway in the sale and in taking too long to resolve the issue. It also failed to keep Mrs B informed and delayed in responding to her complaint. The Council has agreed to apologise to Mrs B and pay her £1000 in recognition of the distress and inconvenience caused.

The complaint

  1. Mrs B is a council tenant. She complains that the Council:
    • wrongly sold her neighbour a piece of land between their properties which forms part of a public right of way;
    • failed to prevent her neighbour blocking up the right of way; and
    • delayed in dealing with the blocked access and her complaint about it.
  2. Mrs B says that, as a result, she has been having to take her garden rubbish through the house causing damage to her flooring and store her wheelie bins outside her front door instead of at the back of the house. She says her husband has lost earnings because he cannot access his ladders which are stored in a place accessed by the land.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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

  1. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. Mr and Mrs B are Council tenants. Their next-door neighbour, Mrs X, purchased her property from the Council’s predecessor several years ago. Included in the sale was a passageway which runs between the two properties.
  2. There were lockable gates at both ends of the passageway because of anti-social behaviour at night. Mr and Mrs B and Mrs X were given keys to the gates. About three years ago Mrs X padlocked the gate and would not allow Mr and Mrs B access to the passageway.
  3. Mrs B says the situation has been very stressful and inconvenient. She and her husband used to store their bins at the rear of their property and use the passageway to bring them to the front for collection. They now have to keep the bins at the front of their house. They have also been forced to bring garden rubbish through the house causing damage to flooring. Mr B uses ladders for his business which he stores in a place accessed by the passageway. He has been unable to use them and has had to turn down work.
  4. The Council’s housing stock is managed by Shropshire Towns and Rural Housing (STAR Housing). In May 2018 it contacted the Council for help with the dispute that had arisen between Mr and Mrs B and Mrs X. The Council began making enquiries about the status of the passageway as it had no records showing it was ever formally adopted as a public right of way. It considered it was not appropriate to take formal enforcement action to open up the passageway whilst these investigations were continuing. Following completion of the investigations, the Council was satisfied the passageway was a public highway. It then explored various solutions including; applying for a stopping up order to remove the highway rights; opening up the passageway and enforcing the highway rights; or achieving a compromise between Mr and Mrs B and Mrs X.
  5. On 1 February 2019 Mr and Mrs B complained to the Council that the issue had been ongoing for the past 12 months and it had done nothing to resolve the situation. They received an acknowledgement stating that the complaint would be considered under the Council’s complaints procedure and they would receive a response by 15 March 2019.
  6. Officers agreed that an application should be made to the court to stop up the passageway. If the application was granted, highway rights would be removed and Mrs X could use the land freely. However, Mr and Mrs B would still have access rights to the passageway.
  7. On 12 April 2019 the Council responded to Mr and Mrs B’s complaint explaining that this was a complex matter. It said that, for any rights over the land to be extinguished, the landowner would need to make a request to the Council to apply for a stopping up order but, until an order was granted, the land should not be obstructed by any person. It said it would not undertake any further work on this matter unless changes to the rights of access were requested by Mrs X.
  8. The Council also wrote to Mrs X stating that she should make contact if she wanted to proceed with a stopping up application. It also confirmed that the passageway should not be obstructed.
  9. On 16 April 2019 Mr and Mrs B escalated their complaint to stage 2 of the Council’s complaints procedure.
  10. In August 2019 the stage 2 investigator wrote to Mr and Mrs B confirming she was looking into the matter.
  11. The application for a stopping up order did not proceed so, in August 2019, the Council instructed an external contractor to review the position.
  12. The Council responded to Mr and Mrs B’s stage 2 complaint on 27 November 2019. It said there were complex issues to resolve and the Council was still considering the matter.
  13. The Council received the external contractor’s report in May 2020. But it did not provide enough information to determine the status of the passageway so the Council sought legal advice. It received this in July 2020.
  14. Officers considered the legal advice at a multi-team meeting in September 2020. They decided the land was highway land so the Council had a legal obligation to protect rights over it. It began work to add the passageway to the public rights-of-way register. It has now agreed to acquire the land and open up the passageway, reinstating the fence between Mrs X’s and the passageway.
  15. The Council accepts this matter has taken too long to resolve and has apologised for this. It has offered Mr and Mrs B £150 in recognition of the time and trouble and inconvenience caused by the delays in resolving the substantive issue and in responding to their complaint.

Analysis

  1. The Council accepts the passageway should not have been included in the sale to Mrs X. It was the responsibility of the Council’s predecessor to ensure the correct land was included. Failure to do this was fault.
  2. The Council was also at fault in that there was considerable delay in ascertaining the status of the passageway and in taking action to resolve the situation. I accept the issue is complex and has required investigation from several Council departments and external parties. But this does not alter the fact that there has been a significant delay in resolving the issue. In particular, there was an excessive delay in instructing an external contractor to review the position and in receiving the report which, when it arrived, was inadequate. There was a further delay in obtaining and considering external legal advice.
  3. I also find the Council was at fault in failing to keep Mr and Mrs B informed. The Council says that, while there may have been some delays in responding to Mr and Mrs B, it has kept them updated as to progress. I disagree. On the evidence seen so far, it appears they were left in the dark as to what was happening. The only information they received was in response to their complaints.
  4. I also find there was a significant delay in the Council responding to Mr and Mrs B’s complaint. They should have received a stage 1 response by 15 March 2019 but did not receive this until 12 April 2019. Mr and Mrs B escalated their complaint to stage 2 on 16 April 2019. They did not receive the Council’s stage 2 response until 27 November 2019.
  5. The Council has offered £150 for the injustice caused to Mr and Mrs B because of the delay in dealing with the substantive issue and in responding to their complaint. I do not consider this to be an adequate remedy for the injustice caused by the fault identified. Mr and Mrs B suffered distress and inconvenience over a lengthy period and were put to time and trouble in pursuing the Council to resolve the matter.

Agreed action

  1. In recognition of the injustice caused to Mr and Mrs B, the Council has agreed that, within one month, it will apologise to them for the fault identified and pay them £1000.

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Final decision

  1. I find the Council was at fault in that it:
    • wrongly included the passageway in the sale to Mrs X;
    • delayed in resolving the issue between May 2018 and November 2020;
    • failed to keep Mr and Mrs B informed; and
    • delayed in responding to Mr and Mrs B’s complaint.
  2. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman

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