The Ombudsman's final decision
Summary: Mr X complained the Council threatened to remove an obstruction he placed outside his property to prevent vehicles expelling exhaust fumes near his home. There was no fault in how the Council told Mr X about its powers and duty to remove obstructions from the highway which was in line with relevant legislation.
The complaint
Mr X complains the Council threatened remove a concrete block he placed outside his property to prevent vehicles expelling exhaust fumes near his home.
Mr X says the matter has caused him frustration and has affected his health.
What I have investigated I have investigated the Council’s use of its powers under the Highways Act 1980. I have not investigated Mr X’s complaint about environmental health and I explain why at the end of this statement.
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 Mr X about the complaint and considered information he provided.
I considered information provided by the Council.
Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Background Information Highways Act 1980 The Highways Act 1980 (“the Act”) places a duty to on any council which is a highway authority to assert and protect the rights of the public. The includes a duty to prevent, as far as possible, the stopping or obstruction of the highways. The council may institute legal proceedings and generally take such steps as necessary in the performance of its duties under the Act. (Highways Act 1980, section 130) The Act states that where a person wilfully obstructs the free passage along a highway, they are guilty of an offence. (Highways Act 1980, section 137) Where a person is convicted of an offence under section 137, the court may make an order to instruct that person to remove the obstruction. If that person does not comply, the highway authority may recover the any expenses reasonably incurred in removing the obstruction. (Highways Act 1980, section 137ZA) Council’s highway policy The Council’s highway policy, the “Highway Network Management Plan”, says that where obstructions are wilfully placed on the highway which prevents or obstructs public use of the highway then the council may serve notice that the objects should be removed. The Council may also seek a magistrate’s order for the removal and disposal of the objects.
What happened In late March 2022 Mr X placed a concrete block outside his property on the public highway to prevent vehicles reversing close to his house and expelling exhaust fumes.
The Council wrote to Mr X in early April 2022 informing him that under section 137 of the Act obstacles cannot be placed on the public highway. It told Mr X to remove the block. It said if the Council had to remove the block it could seek to recover costs. Mr X told the Council that he would not remove the block because he had a right to clean air.
In April and May 2022, the Council communicated several times with Mr X about the concrete block. It acknowledged his frustration but told him the obstruction must be removed. It explained its duties as the highway authority to ensure the road and footpath are clear of obstruction. The Council offered to remove the block free of charge, but also told Mr X if he did not agree to the removal, it would consider legal action and look to recover any costs.
Mr X told the Council the block should remain as his physical and mental health was affected by vehicle exhaust fumes. He also said he struggled to access his house on his mobility scooter when cars were parked outside. The Council told Mr X it would support him to make an application for a disabled parking bay outside his house to assist his access. It said his concerns about air pollution was an environmental health matter, which is the responsibility of the district council.
Mr X complained to the Council. The Council’s final response to Mr X outlined the Council’s duty as the highway authority to ensure the highway is clear of obstruction. It told Mr X that it would remove the obstruction at no cost to him.
In mid-June 2022 Mr X removed the concrete block but left wooden pallets in its place. The Council removed the wooden pallets at no cost to Mr X.
Mr X remained dissatisfied and complained to us.
Analysis The Council has a duty to prevent obstruction of the highway. It asked Mr X to remove the obstruction he had placed outside his home. It informed him that it was an offence under the Act to obstruct the highway and told him of its powers to seek to recover costs. Mr X eventually removed the block at his own expense. Mr X may disagree with the Council’s decision to insist removal of the concrete block; however, the Council acted in line with the law and its own policies and was not at fault.
Final decision
I completed my investigation and found no fault by the Council.
Parts of the complaint that I did not investigate I did not investigate the environmental health concerns raised by Mr X. This is because powers and duties under the Environmental Protection Act 1990 are the responsibility of the district council, not the county council. Therefore, Mr X should complain about this matter to the district council.
Investigator's decision on behalf of the Ombudsman