Summary: Mr X complains the Council entered his land without giving notice. We found the Council was at fault, but the apology it provided to Mr X in response to his complaint was an appropriate remedy to the complaint.

The complaint

1. Mr X complains that the Council entered his land on 5 April 2022 without giving notice beforehand. This followed a previous complaint Mr X made to the Ombudsman in which the Council was found to be at fault for not giving him prior notice.
2. Mr X complains the Council failed to take appropriate action to remind staff of the need to give notice as required by the Ombudsman’s previous decision and its response to his complaint suggests it will not now do this.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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(i), as amended)

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How I considered this complaint

5. I spoke to Mr X and considered the information he provided. I asked the Council for information and considered the Council’s response to the complaint.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Highways Act 1980

7. Section 289 of the Highways Act states that a person duly authorised in writing by a highway authority may, at any reasonable time, enter land for the purpose of surveying that land or to exercise the functions of the highway authority.
8. Section 291 states, where a highway authority have a power to maintain a structure, a person duly authorised in writing by that authority may, at any reasonable time, enter land that is not owned by the highway authority for the purpose of exercising that power. If required, a person seeking entry to land under Sections 289 or 291 should produce evidence of their authority before entering the land.
9. Section 290 states that under Section 289 or 291, a person shall not demand admission ‘as of right’ to land which is occupied, unless at least seven days’ notice of the intended entry has been given to the occupier.

The Home Office Code of Practice: Powers of Entry December 2014

10. Page 11 of the guidance references advance notice. Paragraph 8.1 states ‘Where it is appropriate and practicable to do so, reasonable notice (usually not less than 48 hours or as specified in relevant legislation) should be provided to the occupier or landowner of the intention before exercising a power of entry. Where legislation specifically provides that no notice need be given, authorised persons should nevertheless still consider whether notice could be provided, and where appropriate provide this….’
11. Paragraph 8.5 states that reasonable notice need not be given where the purpose of the entry is the initial safety investigation in the aftermath of an accident, incident or where there is an urgent need to investigate the circumstances/causes of the accident, incident or other emergency or to maintain public safety.
12. Paragraph 8.36 states ‘Reasonable effort should also be made to obtain the consent of the landowner or occupier, unless obtaining consent would frustrate the purpose of the exercise, for example by causing undue delay. It is important that consent is informed and that the occupier is notified about the purpose of the visit and, for exercising the powers of entry and associated powers, what these powers are and how they will be used.’

Background

13. In a previous investigation, we found fault with the Councils actions in relation to entry to Mr X’s land. This was because it did not give notice before entering Mr X’s land on several occasions. We found that both the Highway Act and the Home Office Code of Practice: Powers of Entry December 2014 applied. The Council argued its visits in 2019 were during an emergency. We found that only an initial visit was under emergency circumstances and there was no reason why notice could not be given for subsequent entry onto Mr X’s land.
14. In response to our investigation, the Council agreed to remind staff of the need to adhere to the requirement to give notice before entering land, as required by the Highways Act 1980. It provided evidence it had trained staff on the requirement to give notice before entering land using powers under the Highways Act.

What Happened

15. In April 2022, the Council entered Mr X’s land to carry out an inspection of a bridge. The inspection was carried out by one person (a Bridge Inspector) and lasted about 10 minutes. The visit involved the inspector walking around the bridge to inspect its arch, walls, parapets and general condition. The Council stated the inspection was non‑intrusive.
16. Mr X complained to the Council again. He stated, despite the Council’s assurances following his previous complaint, the Council had again entered his land without providing any notice.
17. In response to Mr X’s complaint the Council stated the visit was necessary to carry out a regular inspection of the bridge. It noted it had the power under Section 291(1) to enter land for the purpose of maintaining a structure. It stated broadly that there was no requirement for the Council to give notice under Section 291 and where Section 290 stated notice was required, it considered this did not apply in these circumstances. It stated Section 290 referred to land that was ‘occupied’. The Council stated Mr X owned the land, but he did not occupy it, so the Council was entitled to enter his land without notice.
18. The Council acknowledged the Home Office Code of Practice for entry to land, but it stated this did not apply either. It stated the Code of Practice only required notice for entry to “Premises”. It stated Premises ‘as defined under the Code does not include land as opposed to anything placed upon it’. So, the Council considered it did not apply.
19. However, the Council stated it did follow the Well Managed Highway Infrastructure (WMHI) Code of Practice. This non-statutory code stated landowners should be contacted to agree arrangements before exercising powers of entry under the Highways Act. The Council accepted that, because it had failed to give any notice, it failed to adhere to the requirements of the WMHI code that it followed.
20. The Council stated that while it accepted the Ombudsman’s previous decision that it was fault for it not to give notice in 2019, the Council had revisited the decision and it called into question whether the Ombudsman’s reliance on the Home Office Code of Practice was correct, since the Code drew a distinction between “occupiers” and “owners” and “premises” and “land”. The Council stated it would not be bound by the Ombudsman’s decision in January 2022.
21. The Council apologised to Mr X for not giving notice, and it acknowledged it should have done.

Was there fault by the Council

22. The Council accepts that it failed to give Mr X notice before entering his land in April 2022. This went against the WMHI Code of Practice that the Council follows. This was fault. I recognise that the Council’s failure to give notice will be concerning to Mr X given the previous issues he had with entry to his land without notice, and our previous findings of fault which included the same problem. However, I found, in this case, the apology the Council provided was a reasonable remedy to the complaint. I say this because the visit was brief and only involved a visual inspection of a bridge from Mr X’s land. There was no significant injustice as a result of the visit.
23. Although the Council still accepts it needs to give notice to Mr X, the Council has raised arguments about the terminology found in the Highway Act and the Home Office Code of Guidance from 2014 and whether the requirements set out in them apply to the land that Mr X complains about. Given, in this case, there was no significant injustice to Mr X, and these are issues of the interpretation of the law, it is not proportionate for us to investigate further to address these issues in more detail.
24. At the time of the previous complaint we received confirmation that the Council accepted the decision and it had taken the action we required; reminding staff of the need to give notice as required by the Highway Act. However, it is concerning that in response to this complaint, the Council told Mr X that it did not consider it is bound by the outcome of the previous Ombudsman decision. If a Council disagrees with a decision the Ombudsman makes, it should explain its view or take action at the time of the decision. The Council cannot now challenge a decision taken in January 2022.
25. As the visit on this occasion did not cause significant injustice, the Council accepted it needs to give notice to Mr X and the Council provided an apology to Mr X, I have now completed my investigation and closed my file. This is on the basis the Council is at fault, but a suitable remedy has already been provided.

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Final decision

26. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman