The Ombudsman's final decision
Summary: Mr X complains about the Council claiming that part of his land is part of the public highway. The Ombudsman will not investigate this complaint. This is because the complaint concerns a dispute about highway boundaries which can only be determined by the courts or the statutory modification procedure.
The complaint
The complainant, who I shall call Mr B, complains about the Council claiming land outside his property to be part of the public highway. He says the Council has to provide evidence of how it has reached this decision which he says is contrary to the Commons Act 1965.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I considered information provided by Mr B and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr B complains the Council’s claim of the extent of the public highway over his land is incorrect. He says evidence shows the land is common land and therefore to claim highways rights over it is contrary to section 22 of the Commons Act 1965.
The Council says the area is part of the highway due to historic rights to pass and repass. It also says the area is maintained by its highway team.
The Ombudsman cannot determine highway boundaries or land ownership. The Council has a duty to protect the public highway and it is the authority which decides the extent of highway boundaries.
The Council has explained why it considers the land to be part of the highway and has provided maps to assist Mr B. If Mr B wishes to challenge the highway authority’s views, then he would need to take legal advice with a view to obtaining a court decision or seek to extinguish the rights claimed by the authority. He could use the evidence which he has obtained to support his claim that the claim of highway rights is incorrect.
Final decision
I will not investigate. We are unlikely to find fault in the Council’s investigation leading it to decide the land is highway land. And further investigation is unlikely to add to that carried out by the Council or lead to a different outcome.
And we cannot determine the highway boundary as this is a matter for the courts.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman