The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to remove some vegetation or maintain a verge. This is because the complainant could take legal action. We will not investigate a complaint that the Council prolonged the complaints process because there is insufficient evidence of fault.
The complaint
The complainant, whom I refer to as Mr X, complains the Council failed to maintain a grass verge and deal with overgrown vegetation. Mr X also says the Council prolonged the complaints process.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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) The courts determine disputes about land ownership and boundary issues.
The courts can require a council to maintain the highway.
How I considered this complaint
I considered information provided by Mr X and the Council. This includes the complaint correspondence and photographs provided by the Council. I also considered our Assessment Code.
My assessment
Last summer Mr X asked the Council to remove a tree and deal with vegetation on Council land, near his boundary. The Council did a site visit and decided it is not responsible because the vegetation is not on Council land.
Mr X complained and explained why he believes the Council is responsible. He said the Council has failed to maintain the verge for many years. In response, the Council explained why it does not think it owns the land or is responsible for the maintenance. It referred to the deeds, photographs and maps. The Council’s position is that Mr X owns the land and is responsible for maintenance.
Mr X continues to dispute the Council’s position. He says his time and stress could have been avoided if the Council had shown competence and common sense.
I will not investigate this complaint for the following reasons. Mr X says the Council is responsible for the verge and associated vegetation. Mr X can serve a notice on the Council under section 56 of the Highways Act 1980 saying it is responsible for the work. If the Council agrees it must do the work. If the Council denies it is responsible, or does not respond, Mr X could apply to the crown court. The court would decide if the Council is required to maintain the verge and hedge. Alternatively, Mr X could go to court to establish who owns the land and thus establish who is responsible for the maintenance. It is responsible to expect Mr X to take one of these approaches because we cannot determine land disputes or decide who is responsible for the maintenance of the land; these are matters for the courts. In addition, the first stage of the section 56 process is free and may help to clarify the issues to help Mr X decide if there are grounds to take the case to court.
I also will not start an investigation because there is insufficient evidence of fault by the Council. I have read the complaint correspondence and, while the matter has been on-going since last summer, I have not seen anything in the way the Council responded to suggest we need to start an investigation. The Council delayed issuing the final complaint response but it let Mr X know there would be a delay.
Final decision
We will not investigate this complaint because this is a dispute that needs to be determined in court and because there is insufficient evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman