Summary: We will not investigate this complaint about the Council’s decision to serve a highway enforcement notice on Mr X for obstruction of the highway. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mr X complained about the Council serving him with a highway enforcement notice in 2023 following his construction of supports for an outbuilding which had suffered erosion of the bank around it. The Council told him that the supporting structure partially obstructs the public highway and he must remove them. He believes that members of the parish council may have informed the Council about the matter due to ill-will from when he was a parish council member.

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

3. I considered the information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Mr X says he carried out some work to support the foundations of an outbuilding which had bene exposed and eroded by rainwater. The repairs he made project into a lane which he says has not seen traffic for many years due to its restricted size and signs erected by the Council advising it was unsuitable for traffic.
6. In 2023 the Council served a highway enforcement notice on Mr X for obstructing the highway and required him to remove the works he had built. He was surprised at the Council’s actions because when he was visited by an officer in 2022, he was not led to believe such action would be taken. He made freedom of information requests and says that the council’s actions were instigated by parish councillors who may have had a grudge against him from his previous membership.
7. We have no jurisdiction over the actions of parish councils. There is evidence that the parish council took a view that it was a matter for the highway authority to determine but Mr X believes a particular individual pressed the matter to the highway authority.
8. Regardless of the source of the reported obstruction, the Council is the highway authority and it has a duty to assert and protect the rights of highway users under the Highways Act 1980. Once aware of any obstruction it has to take some form of action. In this case, although the highway size may restrict its use, there was evidence of an encroachment and the highway is still designated for traffic use. The Council told Mr X that it would require formal de-classification to remove traffic rights and this would be by Traffic Regulation Order.
9. Mr X is dissatisfied with the Council’s actions as he believes his actions were motivated by safeguarding his property and cause no significant injustice to the public. He also believes that they are within the boundary of his property. When considering complaints, we may not question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers or members when there is no fault. This means we will not intervene in disagreements about the merits of decisions.
10. The Council as highway authority had a duty to act on the obstruction and the notices were legitimately served. We cannot determine boundary disputes and if Mr X believes he has not encroached on the highway he can consider taking his own legal action or prepare evidence for a defence against any legal action the Council may take.

Back to top

Final decision

11. We will not investigate this complaint about the Council’s decision to serve a highway enforcement notice on Mr X for obstruction of the highway. There is insufficient evidence of fault which would warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman