The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of matters relating to a boundary dispute. This is because Mr and Mrs X had a legal remedy available against the Council which we would reasonably have expected them to have used and which places the complaint outside our jurisdiction.
The complaint
The complainants, who I refer to as Mr and Mrs X, complain about the Council’s handling of matters relating to a boundary dispute concerning the fence between theirs and their neighbour’s property. They say the Council wrongly changed the position of the fence and trespassed on their land.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainants’ representative, including the Council’s response to the complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr and Mrs X dispute the boundary line between their property and their neighbour’s property and claim the Council was wrong to reposition the fence between the two properties.
If Mr and Mrs X had wanted to challenge what land was in their ownership and what was in the Council’s, it would have been open to them to have taken legal action against the Council. As we would reasonably have expected them to have used this alternative remedy, the complaint falls outside our jurisdiction and will not be pursued.
The neighbouring property is no longer in Council ownership and so if the complainants still want to dispute the boundary, they can take legal action against the new property owner. It will be for the courts, and not the Ombudsman, to determine legal matters relating to the position of the fence and claims of trespass.
Mr and Mrs X say no consideration was given to the impact upon them and that plants were damaged and splintered wood was left on their land by Council officers when the fence was moved. However, neither the fault claimed nor the injustice caused to the complainants is sufficient to warrant an investigation by the Ombudsman.
Final decision
We will not investigate this complaint because Mr and Mrs X had a legal remedy available against the Council which we would reasonably have expected them to have used and which places the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman