The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to approve a vehicular access and its refusal to respond to requests for information. There is not enough evidence of fault in the way the Council made its decision. Also, Mr X can complain to the Information Commissioner’s Officer about his requests for information.
The complaint
I shall refer to the complainant as Mr X.
Mr X says the Council has wrongly allowed a neighbour to install a vehicular access to their property which: crosses over Mr X’s land without permission; and is dangerous to other road users as confirmed by Council staff on earlier visits.
He also complains the Council has refused to respond to his requests made under the Freedom of Information Act.
The Ombudsman’s role and powers
The Ombudsman investigates 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 or may decide not to continue with 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)) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained a neighbour had moved his fence onto the highway, obscuring his view. At first, the Council believed there was encroachment and told Mr X they would write to the neighbour to have the fence moved. However, it says the neighbour provided new information which showed the Council’s records were not correct. It is now satisfied there is no encroachment.
Mr X then complained the fence is on his land.
The Council confirmed: the licensing team carried out routine checks and decided access should be granted.
it does not tell neighbours about applications for vehicular access unless planning permission is needed. In this case it was not.
it refused the application because of possible site constraints. The neighbour provided more information and the matter was reconsidered. The Council decided the original decision was finely balanced and after further consideration decided to grant approval for the access.
different staff including the Crash Reduction Team have reviewed the access several times. They advise visibility is satisfactory.
it has not given away any land. Highways have legal rights overland. This is not the same as land ownership.
The Council is entitled to reply on information provided by the applicant. It granted permission for the access but not permission for the neighbour to steal the complainant’s land. This is a civil matter on which Mr X can take his own legal advice.
Mr X also complains the Council has not responded to requests made under the Freedom of Information Act.
It is reasonable to expect Mr X to refer the matter to the Information Commissioner’s Office (ICO). That is because this is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of the fault in the Council’s decision to approve the neighbour’s vehicular access. And it is reasonable for Mr X to ask the ICO to consider his complaints about the Council’s failure to respond to his response to requests for information.
Investigator's decision on behalf of the Ombudsman