Summary: We will not investigate Mr X’s complaint the Council has failed to provide information about the legal status and width of a track near his property. Investigation will not add to the Council’s actions. It has supplied information via its ‘highway extent’ service. Mr X can reasonably use his legal remedies if he wishes to claim damage to his property or dispute the extent of the highway.

The complaint

1. Complaint 1: Mr X complains the Council has for many years failed to supply highway information relevant to his concerns about the status and width of a track near his property. He wants to know the width of the track, which the Council says is adopted highway, at the junction where it meets the main road. Mr X says the Council has caused him time and trouble since he asked for the information in October 2020 and contacts by email and telephone went unanswered. Mr X says there has been friction with developers about the use of the track by HGV’s. He has concerns about a current application for a housing development where the track is an access route. Mr X wants the Council to provide the dimensions of the track/highway at what he says is the ‘pinch point’ near the junction. Mr X wants the Council to improve practice and train staff.
2. Complaint 2: Mr X complains the Council encroached on his land and caused damage to his property when tarmacking the main road. Mr X says the Council has engaged in bullying tactics regarding the highway and should stop its threatening behaviour.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

8. I have considered Mr X’s information and comments and discussed the complaint with him by telephone. I have considered the Council’s comments and correspondence with Mr X. I have considered plans of the area and a photograph of the road.

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My assessment

9. I will not investigate this complaint for the following reasons:
10. Investigation is not likely to add to the Council’s comments or action:
1. The Council has supplied Mr X with information under its ‘highway extent’ service. On 6 August 2021, the Council wrote to Mr X and provided a plan showing the extent of the adopted highway in front of his property and along the track from the junction. The Council says it does not provide a plan to scale and information is provided to the best of its knowledge. The Council told Mr X the track is adopted highway maintainable at public expense.
2. The Council has taken reasonable steps to try and provide a more precise view of the extent of the highway. Mr X wrote to the Council in April asking for the surveyed dimensions of the highway/track. The Council’s July and August 2022 complaint replies offered to do a video survey of the drainage system and a pipe which it believes may go from Mr X’s land under the track. The Council explained this information should enable it to provide a measurement of the width of the highway. The Council also made relevant enquiries to a neighbouring property.
3. The Council proposed to start the survey of the land/drain on 28 September. It says it did not do so because Mr X had not provided the necessary permission to enter his land. He was not satisfied with the explanation of why the drain survey was being proposed. On 14 September Mr X emailed the Council apparently confirming that position. The Council tells me it went beyond what it is required to do in offering the survey. Having reconsidered the position and the use of public money it has decided not to reoffer the survey.
4. The Council’s complaint replies apologised to Mr X for the delay in replying to him and the failure to reply to calls in May and June 2022. I consider that remedies any injustice. I note the Council has explained in detail its position to Mr X. In the summer he met its flood officer on site who was designated as a link officer for him.
11. Events before September 2021 are outside the Ombudsman’s jurisdiction because Mr X complains outside the ‘permitted period’ of 12 months (see paragraphs 4 and 6). Mr X tells me his problems with the track have gone on for 29 years. In September 2020 Mr X emailed the Council about highways encroaching on the front boundary of his property apparently when tarmacking the main road. In October 2020 the Council wrote to Mr X and required him to remove metal bollards from the road due to public safety. It warned him work on the highway requires a permit and that it might take enforcement action. These matters are all outside the Ombudsman’s jurisdiction and there is no good reason to investigate.
12. A claim of damage to property, a dispute about the extent of highway rights or about ownership of land is outside the Ombudsman’s jurisdiction because Mr X has a legal remedy at court (see paragraphs 4 and 5). I consider it reasonable for Mr X to use his legal remedies. A court has the power to decide such disputes.
13. There is no injustice to Mr X regarding the Council’s recent action on the highway. I understand the Council has removed bollards and white lines that Mr X placed on the highway this year. Should the Council take enforcement action against Mr X, regarding his actions on the highway, it would be for a legal body to decide the case.
14. Should Mr X want general information from the Council he may obtain it via a freedom of information request. If the Council fails to provide the information or delays, it would be reasonable for Mr X to go to the Information Commissioner (see paragraph 7).

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Final decision

15. The Ombudsman will not investigate Mr X’s complaint the Council has failed to provide information about the legal status and width of a track near his property. Investigation will not add to the Council’s actions. It has supplied information via its ‘highway extent’ service. Mr X can reasonably use his legal remedies if he wishes to claim damage to his property or dispute the extent of the highway.

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Investigator's decision on behalf of the Ombudsman