Summary: We will not investigate this complaint about an alledged failure by the Council to progress the complainant’s application to carry out development works on a public right of way in a timely manner. The available evidence shows the Council taking actions in respect of the application during the time it has been working with the complainant on this and there is insufficient evidence of fault to warrant investigation.

The complaint

1. The complainant (Mr X) complains the Council gave him confusing and conflicting information about the process for applying to undertake development works on a public right of away for a change to a public right of way. He says the Council is failing to progress his application in a timely manner.
2. In summary, Mr X says the alledged fault has caused a delay to his plans which has meant he has been unable to sell a number of properties which is contingent on the development works and application being approved. As a desired outcome, he wants the Council to progress his application in a timely manner.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation.

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

4. 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).

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How I considered this complaint

5. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

6. The law says we cannot investigate a complaint where the complainant became aware of the alleged fault more than 12 months ago, unless there are good reasons to exercise discretion. I note Mr X and a consultant he has engaged have both been in contact with the Council in respect of the application since mid-2022 which is when initial enquiries were made and advice was given. From the case records I have been provided, I note there was a period of 11 months between September 2022 and July 2023 where no action was taken by the Council in respect of the application. These records also suggest there was no contact by Mr X or his consultant with the Council during this time. It is unclear whether Mr X complains in respect of this time period.
7. However, it is my view that if he was dissatisfied about the Council’s handling of his application and/or enquiries back then then such issues could and should have been brought to us much sooner. The restriction I outline at paragraph four (above) is engaged and I see no good reason why we should go back to 2022-23 when the evidence shows there was no proactive engagement during this time. It would be logical however to assess matters from July 2023 when contact was next made by Mr X with the Council.
8. Mr X says it was at this point he requested clarification on which form was required for the application, though the Council delayed in providing this information and took over a month just to be informed he needed to obtain consent from a Council service department. He says the Council failed to turn to the application for two and half months, at which point in Janaury 2024, it simply asked whether he wished to proceed. Mr X says he submitted the right of away application to the Council in November 2023 and does not consider the Council meaningfully progressed the application in a timely manner.
9. The application is stated as being a change to the surface of a public right of way and reference is also made to a Section 278 Agreement. Highways works, required on the public highway as a result of development works are subject to a S278 Agreement. As the highway authority, the Council give authorisation for any work on the highway, though works cannot begin until the this agreement is completed.
10. Looking at the information, and given the application is for development works which will entail obtaining permissions, drawings, producing legal agreements and determining costs, I do not think it a reasonable expectation for an application of this nature to be progressed to completion within a one or two months. The Council has explained to Mr X the relevant team have other casework which limits its capacity though has advised on the milestones and process which is also contingent on information being provided by Mr X and his consultant.
11. I have looked at the actions taken by the Council between July 2023 and February 2024 and this evidences the application has been progressing with specific actions taken. I do not accept this was a case where simply no work was being done to process the application. The Council evidence shows it keeping advice about the steps needed to taken by Mr X and information needed from him in order to proceed during this period.
12. I recognise that there was gap in any communication from the Council between November 2023 and January 2024, but this must be viewed within the context that this fell under the festive period, the Council has other casework it must progress and it was waiting on Mr X obtaining relevant consents. The Council has provided evidence of actions being take and Mr X has not provided any information or evidence to suggest this wrong. There is insufficient evidence of fault to warrant investigation. The Council has confirmed it will continue to work and progress the application as quickly as possible and it is unlikely further investigation would lead to a different outcome.

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Final decision

13. We will not investigate this complaint. This is because the restrictions I outline at paragraphs three and four (above) apply.

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Investigator's decision on behalf of the Ombudsman