Decision : Closed after initial enquiries
Decision date : 30 Oct 2019
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s decision to serve a notice to remove a wall he built on a right of way and to charge him for the removal costs. The Ombudsman should not investigate this complaint which was received outside the normal 12 months period for receiving complaints. Mr X could have appealed the notice which was served on him in 2018.
- The complainant, whom I shall call Mr X, complains about the Council’s decision to serve him with a notice under the Highways Act 1980 to remove a wall which he built and to recharge him for the demolition work. He says the Council in past years advised him he could block the right of way and then it prosecuted him for doing so. He says the costs charged to him included site work which was unrelated to removing the wall he built.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- The law says we cannot normally investigate a complaint when someone could appeal to a 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 all the information which Mr X submitted with is complaint and he has commented on the draft decision.
What I found
- Mr X purchased some land and obtained panning permission to develop it for business use. He asked the Council for advice about an alleyway adjacent to the land which was being used for fly-tipping which he wished to prevent. He says the Council’s officers told him in conversations in 2013 that he could contact the Land Registry and advertise that he intended to block the alleyway if he followed the correct procedures.
- Mr X subsequently built a wall across the alleyway which blocked the section of it adjacent to his land. In 2016 the Council contacted him and told him he must remove the obstruction which blocked a right of way. Mr X disputed the Council’s request given earlier advice he received. In 2018 the Council served a notice on him under s.143 of the Highways Act 1980. The notice required him to remove the wall or incur the expense of the Council doing it in default.
- Mr X had a right to appeal the notice to the Magistrates Court, but he did not do so. The Council demolished the wall and recharged him for the works. Mr X says the charge included site work which was not related to his construction of the wall.
- The Ombudsman does not normally investigate complaints about matters which the complainant was aware of more than 12 months before complaining to us. Mr X had opportunity to remove the wall or complain to us after 2016 when the Council began its enforcement. He received the notice more than 12 months before he complained, and it was reasonable for him to use his right of appeal.
- If Mr X is disputing the amount charged to him for the works, he should seek legal advice to challenge this. If the Council takes the matter to a prosecution he could still challenge the validity of the costs.
- The Ombudsman should not investigate this complaint which was received outside the normal 12 months period for receiving complaints. Mr X could have appealed the notice which was served on him in 2018.
Investigator's decision on behalf of the Ombudsman