The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of matters relating to a neighbour fencing off land previously used communally by Ms X and other neighbours. This is because we are unlikely to find evidence of fault by the Council sufficient to warrant an investigation.
The complaint
The complainant, who I refer to as Ms X, says the Council delayed in responding to her complaint about a neighbour who has appropriated an area of land which had been communally used by her and other neighbours. She says despite the land being Council land, and the neighbour not having planning permission, the Council has told her the matter is a private one and has not investigated it properly.
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) 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 any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X complained to the Council about a neighbour who has fenced off land for their own purposes despite not owning the land, previously communally used by local residents over a number of years.
The Council explained that while it could consider whether there had been development which required planning permission, it could not deal with the neighbour claiming the land as this concerns private property rights and suggested Ms X seek legal advice on this matter.
In response to our query, the Council has confirmed that, contrary to Ms X’s view, it does not own the land in question and that it is unregistered. It has explained it cannot intervene in matters concerning private rights nor can they be taken into account in deciding whether to take enforcement action. This is because the planning system regulates the development and use of land in the public interest.
Officers have visited the site and are of the view that it is likely there is no planning breach but that even if there was one, it would not be expedient to take enforcement action. This is a decision the Council is entitled to make and we cannot question the merits of it.
There was delay by the Council in responding to Ms X’s complaint for which it apologised. However, we will not investigate complaint handling matters when we are not investigating the substantive issue.
Final decision
We will not investigate Ms X’s complaint because we are unlikely to find evidence of fault by the Council sufficient to warrant an investigation.
Investigator's decision on behalf of the Ombudsman