The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to clear brambles growing over a footpath. This is because it would be reasonable for Miss X to take the matter to court.
The complaint
Miss X complains the Council has failed to clear part of a footpath which serves the rear of her property. She says there are brambles growing over the footpath and into her garden and she has to pay a gardener to remove them.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions 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)
How I considered this complaint
I considered information provided by Miss X and the Ombudsman’s Assessment Code.
My assessment
The Council has a duty under S130 of the Highways Act 1980 to assert and protect the rights of the public to the use and enjoyment of any highway (the definition of which includes a footpath) in its area.
Miss X says the Council has cleared part of the footpath but has not removed the brambles which obstruct access to the rear of her property. In this case she may serve notice on the Council under S130A asking it to remove the obstruction and, if it does not do so, she may apply to the court for an order under S130B requiring it to act.
It is not for us to determine whether the section of the footpath in question is part of the highway or whether the Council has fulfilled its duty under S130 of the Highways Act 1980. The law provides the mechanism set out above to deal with these issues and if Miss X wishes to pursue the matter further it would be reasonable for her to use it.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Miss X to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman