The complaint
Mr C says the Council alleges he installed a gate in his fence giving him access to a Council car park when he was not supposed to. Mr C is unhappy the Council issued him with a Fixed Penalty Notice (FPN), but has changed its position on what law applies.
Mr C also says the Council claims he removed some shrubs and hedges outside the property without providing evidence.
The Ombudsman’s role and powers
We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A (6) and 34B (8), as amended)
How I considered this complaint
I considered information provided by the Mr C and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council initially issued a FPN in October 2020 for an apparent offence under section 138 of the Highways Act 1980 for ‘erecting a fence/building in a highway’. However, Mr C says it later cited the London Local Authorities and Transport for London Act 2013 as the reason for the offence instead.
Mr C has not denied replacing a section of the fence with a gate. However, he has not said what right he thinks he has to create and use an access point between his property and the Council’s land.
Ultimately only a court of law will be able to say whether there is an offence under section 138 of the Highways Act 1980 or any other law, or resolve any disputes between Mr C and the Council who are adjoining landowners.
The courts would also be able to make decisions regarding the maintenance of the boundary and rights of access between the two pieces of land (including under any covenants which might apply).
Final decision
We will not investigate Mr C’s complaint because it is about legal issues the Ombudsman cannot decide, therefore it would be reasonable for Mr C or the Council to ask the courts to resolve them.
Investigator's decision on behalf of the Ombudsman