Summary: Mr X complains the Council has not taken action to enforce a highway from being overgrown and unusable. The Council is at fault because it delayed taking action over the obstructed highway and did not deal with Mr X’s complaint properly. Mr X was unable to use the highway and remained unclear what action the Council were taking to deal with his complaint. The Council should remedy the highway obstructions and make service improvements.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has not dealt properly with maintaining rights of way because it has not taken action to enforce a highway from being overgrown and unusable.
2. Mr X says he has been unable to use the highway.

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The Ombudsman’s role and powers

3. 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)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. If we are satisfied with an organisation’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

7. I spoke to Mr X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. Mr X 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

Law, guidance and policies

9. The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty to maintain the highway. (Highways Act 1980 s41)
10. The Council may serve a notice on any landowner requiring them to cut back vegetation obstructing the highway. (Highways Act 1980 s154)

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. Mr X reported a road being obstructed by overgrown vegetation in May 2023.
13. The Council’s has contracted its highways maintenance service to Balfour Beatty (BBLP).
14. Mr X complained to the Council because no action had been taken about his report of the obstructed highway.
15. The Council responded to his complaint stating it would be reviewing how to deal with the problem at a meeting with BBLP.
16. Mr X was unhappy with the response and escalated his complaint.
17. The Council replied saying it was unable to add anything further to its stage one complaint response.

Analysis

18. The road Mr X complained about is listed in the Council’s online rights of way portal as a ‘U’ road, which has no works permits or current road closure orders impacting it.
19. The Council says it has held a formal review meeting to discuss the ongoing inspection and maintenance programme for routes that have degraded, Land Owner enforcement is being pursued and the Council’s highway service provider is building a programme for maintenance due to commence this financial year. The continuation of statutory inspection will also take place as per the Highway maintenance plan.
20. The highway reported as obstructed by Mr X has been inspected. I have seen photographs from this inspection. The Council says the route is, “drivable for 200 meters and the hedges have been cut. At that point there is what appears to be either an old or current Badgers set, the hedges beyond this point cannot be accessed by Land Owner. Entering the road from the other end the surface is not metaled nor ever seems to have been and is deeply rutted and flooded in places over 25 meters to a depth of around 75cm in places. The highway...is no more than a drivable track up to the hedges where the badgers set is. This section cannot be accessed even by tractors to be cut. The main considerations here must the fact that the surface is in such a state that only extremist 4x4 drivers or tractors could pass when not flooded. The overgrown vegetation on the impassable sections has been inspected and contractors will be instructed after an ecology assessment has been carried out on the badger sets and other potential impacts from clearance.”
21. The Council also says it will require the land owner to complete further hedge cutting once the nesting season is over and will take enforcement action if this is not completed.
22. The Council says that following the inspection, “BBLP, in liaison with Herefordshire Council, are bringing forward works to address the issues with passability of the route in question. Works teams from BBLP have reviewed the works required and are proposing an initial tranche of works to clear vegetation and make the route passable. As part of this BBLP have been liaising with sub contractors who will support these works in relation to vegetation clearance as well as bringing forward support to undertake an ecological appraisal of the route prior to any works taking place. Subject to the Ecological survey, works are proposed to be undertaken in November but may need review if unforeseen issues arise.”
23. It is clear that there has been delay in determining taking action over the obstructions between May and September 2023. This is fault by the Council. Mr X has been unable to use the highway during this time.
24. The Council accepts that when it made its stage two response to Mr X, it should have advised him that it would update him once the next course of action had been agreed. This is fault by the Council. Its stage two complaint response did not address his escalated complaint and left him uncertain as to what action was being proposed or taken. The Council has apologised for this.

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Agreed action

25. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within the following timescales of my final decision:
• By the end of November, ensure that identified action to remedy the obstructed highway is taken. If this is unable to take place for whatever reason, the Council should update Mr X with the reasons why and provide information about further action with timescales.
• Within 4 weeks, provide guidance to BBLP and Council staff handling complaints regarding effective complaint handling, as listed on the Ombudsman’s website.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have found fault by the Council, which caused injustice to Mr X. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman