The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because there is not enough evidence of fault by the Council to justify our investigation and the courts are better placed to consider any land dispute.
The complaint
Mr Y complained the Council has failed to maintain and carry out repairs to a local land path, in which there is a gate and fencing.
Mr Y says he feels unable to walk along the route on the land without being harassed by bikers and wants the Council to repair the fence and gate.
The Ombudsman’s role and powers
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 there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Mr Y and the Ombudsman’s Assessment Code.
My assessment
Mr Y complained to National Highways in the summer of 2022. The National Highways said it was not responsible for the route and referred him to the Council to continue the matter. Mr Y then made a complaint to the Council, asking it to carry out repairs.
The Council investigated the matter before responding in October and November 2022. Its response explained that it was not responsible for the land, or any route upon it. It has referred to its records to establish this, including reference to its records which showed it was not a right of way on its records. It explained where it did have responsibility for in the area, but that this did not extend as far as where Mr Y had complained about. It said it was not aware who has responsibility for the route. It then referred Mr Y to us.
Analysis The Council has considered the area in order to provide its response, through reference to its records, in particular whether it is responsible for the route and whether there is a right of way over the land. From this, it has explained it does not have a responsibility for the walking route Mr Y has complained about. It has instead suggested that this is likely to be the responsibility of the adjacent landowner. As it does not have such a duty to maintain the route or the land as there is no right of way or highway for which is has a duty to maintain, it is unlikely we would find fault in the Council failing to maintain it.
While Mr Y may feel the Council should be responsible for the route, where there is a dispute over land rights and duties this is a matter which would need to be considered by the courts. We cannot determine land disputes. If Mr Y therefore wishes to pursue the matter and formally dispute the Council’s position, the courts would be better placed to consider the complaint. We will therefore not investigate.
Final decision
We will not investigate Mr Y’s complaint because there is not enough evidence of fault by the Council to justify investigating and the courts are better placed to consider any land dispute.
Investigator's decision on behalf of the Ombudsman