The Ombudsman's final decision
Summary: Mr and Mrs C complained that the Council was at fault for asking them to remove logs they had placed along the edge of their garden to deter cars from parking there. The Council was at fault for its initial failure to provide evidence that the logs were on the highway. This fault caused injustice in the form of distress. The Council has agreed to apologise.
The complaint
The complainants, Mr and Mrs C, say the Council was at fault for: Writing to them telling them they had illegally placed objects along the edge of their garden to prevent cars parking there and that they could face prosecution and legal costs if they failed to remove them, The Council officer who wrote to them was not impartial, Singling them out among their neighbours, Incorrectly telling Mr and Mrs C that a councillor had received a complaint from a member of the public about the obstacles that they had placed there, Failure to speak to Mr and Mrs C about the facts before writing to them, and Failure to respond to their further requests for action.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. 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) 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)
How I considered this complaint
I spoke to Mrs C. I wrote an enquiry letter to the Council. Using the information I had gathered, I wrote a draft decision.
Mr and Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should happen Councils have a duty to maintain highways in a safe condition. Highways include the verges. Councils have powers to require objects which are dangerous or a nuisance to be removed from the highway. (Highways Act 1980) What happened Mr and Mrs C live in a house in the Council’s area. Their front garden runs down to a quiet road on which, not far from their house, there is a small carpark. Between the edge of their garden and the road is a grassy verge. Because the carpark is usually full, motorists often park along this verge, including outside Mr and Mrs C’s house. Mr and Mrs C say that they and their neighbours believe this is dangerous as the cars block the footpath and the road. Mr and Mrs C have complained to the Council before and requested parking restrictions at the site.
Mr and Mrs C and about half of those with houses along this road have placed objects such as stones or logs along the edge of their properties to discourage parking. In 2021, Mr and Mrs C placed logs along their border for this reason.
In June 2021, the Council wrote to Mr and Mrs C saying that they should remove the obstructions outside their property. The letter said that, while the Council understood their desire to protect the grass, they could not place obstacles on the highway as this would be regarded as a safety hazard. The letter asked them to remove the obstructions and told them that, if they did not, they might face prosecution and have to pay costs.
Mr and Mrs C felt that this was ‘rather heavy handed’. They believed the Council had singled them out as it had asked them alone, out of all their neighbours, to remove their obstacles. They also say they were not trying to protect their grass but were trying to prevent dangerous parking which put pedestrians at risk. They wrote to the Council and asked for an explanation.
In their letter they raised the following questions: How did the Council justify complaining about the risk caused by their obstacles when the cars were more likely to cause accidents?
What was the Council doing to prevent dangerous parking at the site?
Had there been ‘singling out and victimization’? as other people’s obstacles were bigger.
They said this was an example of poor customer service.
Mr and Mrs C received a response from a highways manager in late July 2021. He said the Council had had to ask them to remove the logs in order to keep the highway in a safe condition. He said the Council’s “general approach to obstructions within verges is that we tend to tolerate their existence where there are no significant risks to road users. However, should we receive a complaint about such obstructions, we will utilise our powers.”
The letter said the Council had received a complaint about Mr and Mrs C’s logs and so had asked them to remove them. It said illegal parking was a matter for the police and obstructions on the highway were matters for the Council, as highways authority. It said objects on verges were dangerous at dusk or at night as they might not be visible. It said it had not received complaints about objects outside other houses so had not asked for them to be removed.
Unsatisfied with the response, Mrs C wrote again to the Council. She repeated her claim that the Council had singled them out, and their view that it was the parked cars, rather than the logs, which were dangerous. They also said that, in their view, they owned the verge and could therefore put logs on it if they wished.
They later carried out their own investigations and say they are satisfied that most of the logs were entirely on their own property while three were on the border between their land and the highway. Mr C raised this matter in his complaint to the Council. He also asked the Council’s chief executive to review the matter.
Was there fault causing injustice?
Mr and Mrs C’s central point is that, by placing logs on the edge of their property, they were not, as the Council claimed, endangering those using the highway, they were, in fact, making the highway less dangerous by preventing parking which blocked the highway and, forced pedestrians either to walk in the middle of the carriageway or to walk round them in the verges.
This is not a matter on which the Ombudsman can reach a view. The question for us must be whether the Council had a power to act as it did and whether it considered the relevant considerations before making any decision to use that power. In this case, I am satisfied that the Council did have the power to ask Mr and Mrs C to move their logs, providing those logs were on the highway and were, in the Council’s view, causing a nuisance on it.
In this case, the Council says it will only use its powers to ask people to remove obstructions on the highway if it receives a complaint about a particular obstacle. I take this to mean it will only use its powers if it is alerted to an obstacle by a member of the public.
Mr and Mrs C say that most of the logs were on their own land and none were entirely on the highway. I asked the Council to explain how it reached the view that the logs were, in fact on the highway. In response to my enquiries, the Council says, “the Council’s analysis was that they were on the highway”. It adds, “The highway boundary was checked as part of the investigatory process before sending out the letter. It would appear that the Officer did not include a highway boundary plan in his original letter to Mr and Mrs [C] and the Council acknowledges that if he had done so this would have been preferable.”
Mr and Mrs C say the Council did, after they disputed that the logs were on the highway, send them a Land Registry plan which showed that some of the logs at least were on the highway.
I find that the Council should have been able to evidence that the logs were, in fact, on the highway before sending out a warning. The fact that it did not do so was fault. This fault caused distress to Mr and Mrs C which is an injustice.
Sending warning letter Given that the Council had reached a view that the logs should be removed, it was not at fault for sending Mr and Mrs C a warning letter asking them to remove them. It needed to formally communicate the decision to Mr and Mrs C and a warning letter was a legitimate method of doing so. The letter warned them that they might face consequences if they did not remove the logs.
Impartiality of officer While the officer who wrote to Mr and Mrs C had had previous involvement with Mr and Mrs C there was no reason why he should not have sent this letter to them. This is a local council and it is inevitable that council officers will have connections with local places and people. There is no evidence that any involvement by the officer affected the decision to issue the warning nor that he treated Mr and Mrs C differently as a result. I do not find fault.
Singling out Mr and Mrs C say the Council singled them out. They suspect that a councillor complained about them to the Council to trigger action against them when it took no action against their neighbours. The Council says the councillor received a complaint from a member of the public and passed it on to the relevant department. There is insufficient evidence for me to reach a view on this and I have seen no evidence of any victimisation or bias in Mr and Mrs C’s treatment. I do not uphold this part of the complaint.
Failure to contact Mr and Mrs C before warning While the Council might have contacted Mr and Mrs C informally before officially warning them, there was no requirement for them to do so. The warning letter was, in any event, a private letter of which their neighbours would not have been aware. There was, therefore, no possible reputational risk to Mr and Mrs C.
Failure to respond to further requests for action The Council considered that it had responded adequately to Mr and Mrs C’s concerns. But for the fault found, I find that it had. I do not find fault.
Agreed action
The Council has agreed to write to Mr and Mrs C within four weeks of the date of this decision and apologise to them for the fault found and to respond to their request to install posts along the edge of their garden at their own expense.
Final decision
I have found the Council at fault and completed my investigation.
Investigator's decision on behalf of the Ombudsman