Summary: Mr B has a dispute with the Council about the width of a bridleway on land he owns. The Ombudsman will not investigate the complaint because the time that has passed since he first knew of the matters about which he complains, and the availability of a court remedy, place it outside our jurisdiction.

The complaint

1. The complainant, who I refer to as Mr B, complains about the measurements the Council used for determining the width of a bridleway on land he owns and used these to wrongly remove fencing from his land. Mr B says the Council should further explain the measurements it used, replace the fencing and compensate him.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr B and the Council. I gave Mr B the opportunity to comment on my draft decision and considered the comments he made.

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What I found

5. Since at least 2015 there has been a dispute between Mr B and the Council about the positioning of a bridleway on land owned by Mr B.
6. Recently, under powers set out in section 143(2) of the Highways Act 1980, the Council removed fencing Mr B had erected on land it considered to be part of the highway.
7. In determining its course of action, and because there was no one document which categorically stated the width of the bridleway, the Council investigated the matter, referenced the relevant documents and commissioned an expert report.
8. Mr B disagrees with the wider width the Council used as a basis for the action it took and quotes from the expert’s report which states that “in the absence of conclusive evidence as to the width of the bridleway, a commonly used width of 2.4m would be appropriate”.
9. In response to Mr B’s complaint about the matter, the Council has told him it weighed the evidence available, used the balance of probability, and came to a conclusion on the likely width of the bridleway. It pointed out that the expert did not say the width of the bridleway was 2.4m and it came to its own conclusion on the matter.

Assessment

10. The time restriction highlighted at paragraph 2 applies to Mr B’s complaint because the dispute has been in existence since at least 2015 and I see no grounds which warrant the Ombudsman exercising discretion to investigate it now.
11. Mr B says his complaint is specifically about the Council’s actions in destroying his fence in 2018. However, this action was the culmination of a dispute which has existed for a number of years and covers the positioning of the bridleway.
12. Even if the time restriction did not apply, the restriction highlighted at paragraph 3 still applies to Mr B’s complaint as he can take legal action against the Council in the courts and, as we would reasonably expect him to make use of this alternative remedy, the complaint falls outside our jurisdiction.
13. Mr B argues that in the face of their dispute, the Council commissioned an independent report but did not follow its findings. However, not only does the report not categorically cite the width, it was one of a number of sources of evidence the Council considered before coming to its view. The Council was not obliged to follow the findings of the report but it took it into account, along with the other evidence it had available.
14. It is not the role of the Ombudsman to review the merits of decisions properly taken by local authorities and we cannot substitute our view for that taken by officers using their professional judgement. Given the apparent complexities of the case, and Mr B’s contention that the Council is wrong in the professional judgement exercised, then I consider it reasonable for him to take his dispute to court if he wishes to pursue the matter.

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Final decision

15. The Ombudsman will not investigate this complaint. This is because the time that has passed since Mr B first knew of the matters about which he complains, and the availability of a court remedy, place the complaint outside our jurisdiction

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Investigator's decision on behalf of the Ombudsman