London Borough of Waltham Forest

The Ombudsman's final decision

Summary: We will not investigate Mr X’s complaint about parking enforcement action taken on land outside his property. This is because the courts are better placed to determine the extent of the public highway and there is not enough evidence of fault in the way the Council reached its decision. It would also be reasonable to expect Mr X to use the statutory representations and appeals procedure.

The complaint

Mr X complains the Council has carried out parking enforcement action outside his property without proving the precise boundary of the public highway. He says it relied on general mapping and Land Registry title plans despite the guidance stating titles show general boundaries and are not tools for accurate measurement. Mr X says the Council accepts it has no definitive plan which shows the precise highway boundary. He says he has been parking there for over 20 years without any objections. He says the situation has caused stress and frustration. Mr X wants the Council to withdraw all enforcement action relating to parking and vehicle access to the frontage of his property. He also wants it to issue an apology, correct its mapping records, and pay back any costs or losses caused by the enforcement action.

The Ombudsman’s role and powers

The Local Government Act 1974 sets out our powers but also imposes limits on what we can investigate.

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) We cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. If the person has already appealed we have no power to investigate. (Local Government Act 1974, section 26(6)(a), as amended) London Tribunals considers parking and moving traffic offence appeals for London.

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 information from Mr X and the Council and the Ombudsman’s Assessment Code.

My Assessment

The core of Mr X's complaint is he disputes the Council's view the land outside his property forms part of the public highway and said the Council has not proved the precise public highway boundary.

Deciding the exact extent of the public highway, or whether land is privately owned, is a legal matter. The Ombudsman cannot decide landownership, declare highway rights or establish precise legal boundaries. If Mr X wishes to get a binding determination of the public highway boundary, that is a matter for the courts. Because only the courts can make a binding determination about the extent of the public highway. It would be reasonable to expect Mr X to pursue this aspect of his complaint through the courts if he wishes to challenge the Council's position.

The Ombudsman is not an appeal body. This means we do not take a second look at a decision because someone disagrees with it. Instead, we consider whether the organisation followed the correct process in reaching its decision. Where there is no evidence of fault in that process, we cannot question the merits of the decision itself. The evidence available shows the Council considered the information Mr X provided, checked its available highway records, and considered the site's physical layout and pedestrian safety risks. It recognised the general boundary limitations of Land Registry title plans and noted it held no historic engineering drawings for the location. It explained the reasons for its conclusions and was entitled to exercise its professional judgement. Although Mr X disputes the Council's conclusions about the public highway boundary. There is not enough evidence of fault in the way the Council reached its decision to justify an investigation. The question of the precise legal extent of the public highway is a matter for the courts.

Mr X said parking enforcement action has been taken unfairly. Where a Penalty Charge Notice (PCN) has been issued, there is a statutory procedure for making representations and appealing to an independent tribunal. It would be reasonable to expect Mr X to use that procedure to challenge any PCN.

Final decision

We will not investigate this complaint because the courts are better placed to determine the extent of the public highway and there is not enough evidence of fault. It would also be reasonable to expect Mr X to use the statutory representations and appeals procedure.

Investigator's decision on behalf of the Ombudsman