The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to take action under highways legislation against Miss X over her closing of an alleyway with a gate. There is insufficient evidence of fault which would warrant an investigation.
The complaint
Miss X complained about the Council’s decision to serve her with a notice under s.143 of the Highways Act 1980 for obstructing a highway by closing access to a nearby alleyway with a gate. She says she took the action because the route was being used for criminal activity and anti-social behaviour and that local residents support her action.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered the information provided by the complainant and the Council’s response.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says she decided to close off an alleyway adjacent to her property because it was being used for anti-social behaviour and drug crime. She says the Land Registry confirmed the land is unregistered and she believes she will be able to claim adverse possession in due course.
The Council contacted Miss X after it says it received reports that she had closed the alleyway which has been used as a highway for decades by some. The Council is the highway authority and it has a duty to assert and protect the rights of highway users. Although the highway may be on unregistered or private land, it has highway status by use and cannot be extinguished or obstructed without following the proper procedure. Even if Miss X obtains ownership of the land she cannot extinguish the highway rights.
The Council has negotiated with Miss X for a considerable period of time and has decided to refer the matter to its legal advisors to draw up a notice because no progress has been made with removing the obstruction.
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
In this case the Council as highway authority is acting within its powers under the Highways Act 1980 and there is no evidence of fault in the process.
Final decision
We will not investigate this complaint about the Council’s decision to take action under highways legislation against Miss X over her closing of an alleyway with a gate. There is insufficient evidence of fault which would warrant an investigation.
Investigator's decision on behalf of the Ombudsman