Summary: We will not investigate this complaint about obstructions on a public byway. The court is better placed to deal with the complaint, and it is reasonable to expect Mr X to go to court about the matter.

The complaint

1. Mr X complains about how the Council has responded to his reports of an obstruction on a public byway. Mr X says the Council has not fulfilled its statutory obligations under the Highways Act 1980, and he can no longer use the byway. Mr X wants the Council to make the landowner remove the obstruction.
2. Mr X also complains about how the Council handled his complaint.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to 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)

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How I considered this complaint

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

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My assessment

7. Mr X complained to the Council about a landowner’s decision to build earthen banks alongside a public byway, which he says narrows the path and makes it impossible to use. The Council has investigated the concerns and decided it is proportionate to monitor the situation. Mr X is unhappy with the outcome and wants the banks removed.
8. The Highways Act 1980 sets out how disputes about obstructions on public rights of way should be resolved. Section 130 of the Highways Act gives a member of the public the right to serve a notice on the council requiring it to clear an obstruction. If it fails to do so, the complainant can then ask the magistrates’ court to order it to do so. Mr X could reasonably use that legal remedy. We do not normally investigate matters where the courts are better placed to decide, so will not investigate this complaint.
9. It is not a good use of public resources to investigate complaints about complaint procedures, if we decide not to investigate the substantive issue.

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Final decision

10. We will not investigate Mr X’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman