Summary: We will not investigate this complaint that the Council is unreasonably denying access to a road which it owns and maintains at the public expense. This is because it is ultimately for the courts to decide about the status of the road, and we cannot achieve the outcome the complainant is seeking from his complaint.

The complaint

1. The complainant, who I shall call Mr B, complained about the Council’s decision to withdraw permission for the public to access a road it owns, and its view that the road is not a highway maintained at public expense (i.e. an ‘adopted road’). As an outcome for his complaint Mr B wanted the Council to allow the public to access the road.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe we cannot achieve the outcome someone wants, or there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information Mr B provided with his complaint, and his comments in response to a draft version of this decision. I also took account of the Council’s response to our enquiries in Mr B’s case.

What I found

4. Mr B is a cyclist and one of the routes he takes includes a road which crosses an area of parkland owned by the Council. After a resident of the road challenged Mr B’s right to use the road he complained to the Council.
5. Mr B said there was evidence to show the road was adopted by the Council and, even if it was not, the Council had previously given the public permission to use it. Mr B also questioned the Council’s right to exclude the public from a road under its ownership.
6. In response to Mr B’s complaint the Council referred the matter to its legal service to look into the legal position regarding the road. The legal service said there were some conflicting or unclear records about the road’s status. But it concluded from the evidence, on balance, that the road was a private road in its ownership and that access to the road was subject to it giving permission.
7. Subsequently the Council decided to withdraw access to the road for walkers, cyclists and other categories of user. Mr B then brought his complaint to us.

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Analysis

8. However I have decided that we should not investigate Mr B’s complaint.
9. Mr B and the Council evidently have opposing views about the legal status of the road and the right of the public to access it. But I do not see that the Ombudsman is in a position to resolve these matters. In particular we do not have a remit to determine the law or make binding legal rulings about the status of roads. As a result I consider the legal dispute at the heart of Mr B’s complaint is ultimately something the courts would need to decide on.
10. In the circumstances I also do not see an investigation could achieve the outcome Mr B is seeking from his complaint. First, we have no enforcement powers regarding the Council’s decisions about access to roads. In addition, as we have no remit to reach a definitive view about the status of the road in question, I do not see we could justifiably make any recommendations to the Council about who may use it.

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Final decision

11. We will not investigate Mr B’s complaint that the Council is unreasonably denying the public access to an adopted road. This is because ultimately the courts are the appropriate body to decide a dispute about the status of the road, and we cannot achieve the outcome Mr B is seeking in this respect.

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Investigator's decision on behalf of the Ombudsman