Summary: There is no fault by the Council. It is entitled to charge Mrs X for the cost of equipment to make a public footway safe under its duty to protect the use and enjoyment of the highway.

The complaint

1. Mrs X complained the Council unfairly charged her £160 a month for cones and fencing to make safe a retaining wall on the boundary of her property and failed to give a reasonable explanation for the fee.
2. Mrs X said others have not been charged despite the Council recording movement in the area.
3. Mrs X also complained the Council decided she owned the wall when it is the legal owner.
4. She said the Council’s actions and failings caused avoidable distress and a financial loss.

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The Ombudsman’s role and powers

5. 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 (or failed to do). (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
9. 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(1), as amended)

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What I have and have not investigated

10. I have investigated the complaint in paragraph one which happened within 12 months of Mrs X complaining to us. Matters older than 12 months are late with no reason for Mrs X’s delay.
11. Mrs X has complained to us previously about the Council’s decision to install safety equipment. I have not re-investigated that complaint.
12. I have not investigated the complaint in paragraph two as Mrs X has no significant personal injustice.
13. I have not investigated the complaint in paragraph three because the First Tier Tribunal (Property Division) is the expert tribunal in determining disputes involving boundaries. The LGSCO is not well placed to determine disputes involving legal issues. It is reasonable for Ms X to use this right. Or, she can make a similar claim to the county court. Costs awards are possible if she is successful.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

16. A council has a duty to protect the rights of the public to use and enjoyment of the highway and to prevent it from being obstructed, as far as possible (Highways Act 1980, section 130)
17. Our Principles of Good Administrative Practice set out our expectations of councils. We expect them to be open and accountable. This includes ensuring information and advice is clear and giving reasons for decisions.

What happened

18. Mrs X’s property has a retaining wall onto the public highway. The wall is in a poor state and the Council has installed a fence and cones to protect pedestrians. Mrs X’s previous complaint us was about the Council’s decision she was responsible for repairs to a section of the wall and should pay a portion of the cost of safety measures. We did not uphold the complaint. We concluded the Council had advised Mrs X it would charge her and the other owners of the wall (Mrs X’s neighbours) for the cost of installing safety fencing and the ongoing costs related to this.
19. A council officer emailed Mrs X with a breakdown of costs for December 2024. They explained she would be sent a monthly invoice for the costs until the danger to the highway had been removed and the price was calculated based on the length of dangerous wall which formed her boundary
20. In further email exchanges, council officers told Mrs X:
• 17.5 meters of the wall were in a dangerous condition;
• 4.1 meters was her responsibility which forms part of the boundary of her property
• It had taken plumb measurements in September and November 2024 and in January 2025. (to check whether the wall is perfectly vertical)
• It would continue to take monthly plumb measurements of the whole wall from fixed positions. She could be present when these took place
• The total cost of the safety measures for the whole wall was £740 a month, based on the framework rates its contractor had set.
• Repairs she had done like repointing, re-setting capping stones and removing vegetation had not resolved the issue of the wall leaning and it was at risk of full or partial collapse.
21. The Council’s response to Mrs X’s complaint said:
• It had split the bill according to the length of wall for each property.
• It charged each owner the relevant cost if it considered their section of the wall dangerous.
• It would not share the invoices as they were commercially sensitive.
• The costs included equipment, a monthly inspection to check the wall and inspect the equipment.
• The costs should not come from public funds as she was responsible for the wall.
22. In response to our enquiries, the Council has provided us with information about how it has calculated Mrs X’s charge for the part of the wall she owns. It is commercially sensitive information. The Council has set out its framework contract rates for closing the footway, ramps and signs, separators and fencing. It said it has not made any profit.

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Findings

23. There is no fault by the Council. It has explained the basis of the charge to Mrs X. It is entitled to charge for safety measures on the basis of its duty in the Highways Act and so there is no fault. I do not uphold the complaint because the explanation given is clear and in line with our expectations of councils to be open and accountable.

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Decision

24. I find no fault.

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Investigator's decision on behalf of the Ombudsman