Summary: We will not investigate Mr X’s complaint about the Council’s failure to clear an obstruction on a public footpath. This is because it is reasonable for him to pursue the matter at court.

The complaint

1. Mr X complains the Council failed to resolve his reports of obstruction on a public footpath. He says his neighbour put up a fence outside their property’s boundary so that the fence was supported by posts encroaching on the public footpath. He says the fence was illegally erected and prevents him from carrying out essential maintenance repairs to his property.
2. Mr X says the Council has a legal duty under the Highways Act 1980 to keep public rights of way free from obstructions and it should take action to remove the encroachment by his neighbour.

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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)
5. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X complained the Council refused to clear an obstruction on a public footpath, which prevents him accessing his property to carry out essential maintenance.
10. The Council has responsibility to ensure the public can use the rights of way network within the area it covers. Its main responsibilities include enforcing the removal of obstructions along rights of way that are found or reported to the team.
11. Following Mr X’s report of an obstruction, the Council inspected the public footpath, but it decided not to take any action to remove the fence. It said there was only a minor narrowing of the footpath at the relevant location (four centimetres less than the width recorded in the Definitive Statement). The Council decided this meant the fence had no significant impact on the public’s ability to use the footpath. There is not enough evidence of fault in the Council’s decision-making process to justify investigating. It has given clear reasons for its decision.
12. It is clear Mr X disagrees with the Council’s decision not to enforce removal of the fence from the public footpath. But this is not evidence of fault. If Mr X wishes to challenge the Council’s decision, he may do so by taking the matter to court.
13. Section 130 of the Highways Act 1980 allows any member of the public to serve a notice on the Council requiring it to clear an obstruction. If it fails to do so, Mr X can ask the Magistrates Court to order it to do so. As we would reasonably expect Mr X to make use of this alternative remedy, the complaint falls out of our jurisdiction and will not be investigated.
14. Similarly, we cannot investigate Mr X’s complaint so far as it concerns any part of the neighbour’s fence encroaching onto the boundary of his own property. This is a civil matter between Mr X and his neighbour, and not the responsibility of the Council. It is open to Mr X to seek legal advice and, if necessary, pursue legal action against his neighbours.

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Final decision

15. We will not investigate Mr X’s complaint about the Council’s failure to clear an obstruction on a public footpath. This is because it is reasonable for him to pursue the matter at court.

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Investigator's decision on behalf of the Ombudsman