The Ombudsman's final decision
Summary: We will not investigate this complaint about land status as ultimately this is a matter for the courts, and we cannot achieve the outcome the complainant seeks.
The complaint
Mrs X complained the Council instructed her to remove a wall at her property which it says has been built on land with highway rights. Mrs X says this matter has caused her stress and financial strain and wants the Council to reverse its decision about the wall.
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 or continue an investigation if we decide we cannot achieve the outcome someone wants (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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
Background
The Council is empowered under the Highways Act 1980 to take action to remove structures which might obstruct land having highway rights.
The Council has been in communication with Mrs X and her legal advisors/surveyor and has carried out site visits, examined historic records and considered Mrs X’s surveyor’s report. It has concluded that Mrs X’s wall is built on land with highway rights and must be removed.
My assessment
Indications are that the Council has considered the evidence before it and made a decision it is entitled to under law. This decision rests on the Council’s assessment that the land in question has highway rights. We are not empowered to determine if this assessment is correct or not; ultimately any dispute could only be resolved in court. It would be for Mrs X to pursue this legally if she disputes the Council’s assessment.
We cannot ask the Council to reverse the decision it has made that the wall must be removed.
As such, I do not consider we can achieve the outcome Mrs X seeks or any another meaningful outcome by investigating this complaint, as ultimately this is a matter for the courts.
Final decision
We will not investigate Mrs X’s complaint because ultimately it is a matter for the courts, and we cannot achieve the outcome she seeks.
Investigator's decision on behalf of the Ombudsman