Summary: Mr X complained about the process the Council followed when he complained about changes to a boundary fence on land behind his property. There was no fault in the Council’s actions. However, there was fault in the way it responded to the complaint. The Council agreed to send a written apology to Mr X for the fault identified with its complaint handling.

The complaint

1. Mr X complains the Council failed to follow an appropriate process when the developer of a site behind his property queried the ownership of a strip of land. The land was between the development site and his property. Mr X complains the Council was wrong to allow the developer to include the land in their site, its actions were not transparent and it did not deal with his complaint properly.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the information Mr X provided and his complaint to the Council. I asked the Council for information and considered its response to the complaint.
6. I sent Mr X and the Council a draft decision to enable them to comment.

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What I found

7. Mr X complains about a strip of land running behind his back garden. The Land Registry Title for his property states he has the benefit of a right of way over a passageway leading to the back of his property.
8. The area behind Mr X’s property and behind the access strip is owned by the Council. The Council, in conjunction with a housing association, is developing the land. The land was formerly a council estate. It was demolished to allow new social housing to be built.
9. The development concerned has planning permission. The development site boundary is shown on the approved plans, marked by a red line. The plans show the passageway between the site boundary and the boundary of residents’ properties. The Council says the plans were based on the legal title documents which show the extent of its land. So, its position is that the approved plans correctly depict the land in the Council’s ownership.
10. However, the situation on the ground is different. The land between the hoarding around the development site and residents’ boundaries is wider and larger than that shown on the plans.
11. In September 2018 the housing association contacted Mr X and other residents concerning a proposal to plant trees within the development site to provide screening between the development and the new houses being built.
12. Mr X provided a copy of correspondence between the housing association and Officer A of the Council in October 2018. The housing association asked if the Council owned the strip of land between the residents’ gardens and the hoarding. They asked if they could plant trees on the land. Officer A stated the land was not council owned. He stated the Council believed it was owned by the original developer of the street and allows residents access along it. The officer stated he would look at the files further.
13. In March after Mr X submitted Freedom of Information requests to the Council, he queried what ‘files’ Officer A was referring to. It did not appear they had been sent to him in response to his FOI request.
14. Officer A confirmed the files he was referring to were legal advice emails he received 2013. He stated the legal advice could not be shared. However, Officer A confirmed that it said that the alleyway (behind residents’ properties) was unregistered but likely to be in the ownership of the company that originally built Mr X’s and other residents’ properties. Officer A noted this advice was based on the assumption that the Council’s fence correctly defined the ownership boundary.
15. In the following months the Council says it came to realise that the fence erected many years ago around the original council estate had been erected in the wrong place. It was not on the boundary, but slightly further inside the land the Council owned. So, the Council’s position is that when the site began to be developed, the hoarding around the development site was not around the full extent of the site, shown by the red line on the approved plans.
16. There is no dispute that residents have access to the rear of their properties via a passageway running along the rear of their gardens. However, the Council considers part of the area between their properties and the original Council fence is the residents’ access strip and part of it is land owned by the Council that should be part of the development site.
17. In January 2019 the developers removed some old fencing outside the hoarding (but on land the Council considers is in its ownership). This prompted Mr X to complain to the Council.
18. Mr X sent his formal complaint to the Council on 13 March 2019. He stated Officer A had facilitated a boundary change without the knowledge of residents. He noted Officer A told the housing association the Council did not own the land between the site and their houses. He said the Council had denied it owned the land for 40 years and declined to carry out work on it in the past, but Mr X said it was now helping the housing association to move the boundary.
19. Officer A responded to the complaint on 14 March, denying that he had facilitated any change of boundary. He said he had commented the land was unregistered. Officer A stated the extent of the unregistered land would depend on whether the fence was in the correct place.
20. On 7 April Mr X escalated his complaint. He noted Officer A, who was named in his complaint, had responded. He felt this was inappropriate and previous requests to escalate the complaint had been ignored. In terms of the land issue, he felt the correspondence between Officer A and the housing association suggested he was helping them to achieve boundary change.
21. The Council’s further response noted that Officer A had clarified that the assumptions about who owned the land would need to be decided by establishing the correct legal boundary. The Council was satisfied Officer A was seeking to establish what the correct legal boundary would be, not attempting to effect a change of boundary to the detriment of residents.
22. On 4 May Mr X told the Council he was unhappy with the response to his complaint. Mr X considered Officer A was working with the housing association and his dealings with residents had not been transparent. Mr X believed the housing association had made an error with the planning application, they were asking Officer A to mask this and it was in effect, a ‘land grab’.
23. On 7 May the housing association’s solicitors wrote to residents. They set out their view that the hoarding around the development site was not the correct legal boundary. So, the housing association proposed to construct a fence along the correct legal boundary. The letter acknowledged residents had a legal right of access over a strip of land behind their properties and this would not be impeded. The solicitors stated, they had commissioned a boundary surveyor to properly establish where the boundary between the residents’ access strip and the Council’s land should be.
24. The letter acknowledged this was a change to the present situation on the ground and the housing association and the Council wanted to work with residents to resolve the situation. It invited comments and feedback. In addition, it stated that the housing association would be prepared to pay for an independent boundary surveyor to be appointed by residents, to work alongside their own surveyor to resolve the issue.
25. In May Mr X told the housing association’s solicitors he was taking legal advice.
26. On 3 June the Council finalised its response to Mr X’s complaint. It referred to the housing association solicitor’s letter. The Council stated this was also the Council’s position. The Council recognised the unregistered strip of land running behind Mr X and other residents houses was not in council ownership. It stated residents’ rights of access over that land would not be affected by the Council moving the fence. However, its position was that the Council’s fence did not mark the boundary between the unregistered strip and land the council did own. The Council wanted to move the fence to the correct position.
27. On 7 June the housing association’s solicitors offered to meet residents with the housing association and the Council. The Council says the offer of a meeting was not taken up.
28. A solicitor contacted the housing association’s solicitors on 21 June to state they were acting for Mr X. The housing association chased the solicitor for details of the residents’ position on several occasions. On 19 August 2019 Mr X’s solicitor stated residents were claiming adverse possession of land between their properties and the original fence which marked the council estate boundary.
29. On 20 August the housing association’s boundary surveyor visited the site and drew up plans showing the land that was in question.
30. In his complaint to us, Mr X said he was unhappy with the processes and procedures the Council followed about the matter. He stated the Council had failed to follow a proper legal process. He stated it had not addressed his concerns and it refused to be transparent; It had not shared all of its correspondence with its legal department when he submitted a Freedom of Information request. Mr X complains the Council had shared information with the housing association which Mr X felt was biased and unjust.
31. Mr X felt the Council had conspired with the housing association to manufacture a change of the boundary to allow it to acquire unregistered land the Council had previously denied it owned.
32. Mr X also commented that the Council had provided incorrect information about the extent of the land that he would own in its response to local searches when he purchased the property. This was in the 1990s. He felt local searches should show any issue with the land behind his property. He stated local searches should also show planning decisions that affect his property.
33. He stated that information on his deeds stated the rear access to his property was not maintainable at the public expense. He took that to mean the access was not owned by the Council. He noted correspondence from Officer A in October 2018 supported the position that the Council did not own the land.

Process followed by the Council

34. The Council says the issue was discussed as part of regular meetings with the housing association to review various legal issues about the development as a whole.
35. When the housing association began to investigate the area of land in question, it found that the hoarding around the development site was not in the correct place. The Council and housing association reviewed Land Registry Title documents, the approved plans and the lease documents to establish this.
36. The housing association engaged a solicitor to write to residents to explain its view and to state a professional boundary surveyor would be engaged to confirm the correct boundary. It offered to pay for them to engage their own boundary surveyor to resolve the dispute. It also offered to meet with residents. The Council and the housing association have sought legal advice about resolving the matter.
37. I understand Mr X has also engaged a solicitor and is preparing to challenge the ownership of the land via the Land Registry.

Analysis

38. There is no dispute that Mr X and other residents have access over a strip of land behind their properties. The right of access to the rear of Mr X’s property is set out in the Land Registry Title document for his property. The Council does not dispute this. However, there is dispute between Mr X and the Council as to where the unregistered strip of land ends and the Council’s land begins.
39. The Ombudsman cannot decide a boundary dispute or establish who owns what land. This would be a matter for the courts.
40. Mr X’s complaint relates the process the Council has followed in response to the matter rather than the boundary issue itself.

Sharing Information

41. The Council’s initial response to Mr X’s complaint stated the Council would work with the housing association to identify the correct legal position. I note Mr X’s concern that the council is sharing information with the housing association, but it has not shared all of its legal advice with residents. He feels this is biased and Officer A seemed to be acting to try to change a boundary.
42. There is clearly correspondence between Officer A and the housing association. But the correspondence provides no evidence of impropriety. Officer A’s correspondence states the Council’s position. It is a matter of dispute whether there has been or will be any change to the legal boundary. The Council own the development site, and the housing association are developing it. So, it is not unreasonable for the parties to work together on the issue or for the housing association to also take a role in responding to the issues raised. Both the landowner and developer have an interest in resolving the issue.
43. It is not uncommon for organisations to maintain confidentiality of legal advice, particularly when they are in dispute with another party which may result in legal proceedings. If Mr X feels the Council’s failure to disclose its legal advice was wrong, it is open to Mr X to challenge this through a complaint to the Information Commissioners Office. The Information Commissioner’s Office (ICO) was created by Parliament to consider complaints about access to information held by public bodies such as councils.
44. The ICO has powers which the Ombudsman does not have to require the Council to comply with the Freedom of Information Act and the Environmental Information Regulations 2004. It can also require an organisation to provide information to requestors where appropriate. So, Mr X may wish to raise his concerns about access to information, transparency and a refusal to provide copies of legal advice with the ICO.

The Process followed/actions taken resolve the dispute

45. In response to the dispute the Council and housing association reviewed the approved plans for the development, looked at legal title documents and took legal advice. The housing association’s solicitors wrote to Mr X to state they would be engaging a boundary surveyor and offered to pay for residents to do the same. They offered to meet. These are not unreasonable steps to take to try to resolve the issue.
46. I have found no fault in the way the Council, working with the housing association, have responded to the boundary issue. The Council, via the housing association have set out their view. I understand Mr X and other residents consulted a solicitor and they say they own the land through adverse possession. The Ombudsman cannot say who is correct about the status of the land.

Complaint response

47. Although I found no fault in the steps taken to investigate and respond to residents about the land issue itself, there was some fault in how the Council responded to Mr X’s complaint. The Ombudsman’s guidance on good complaint handling states that to be fair to complainants (and council officers subject to complaints) it would generally be inappropriate for an officer subject to a complaint to be asked to respond to it. The Council accepted that because Mr X made a formal complaint about Officer A, the response should not have been sent by Officer A. This was fault.

Local Searches

48. It is possible to request various information from a Council as a ‘local search’.
49. Mr X says that local searches from the 1990’s onwards all showed the strip of land behind his property is not council owned. Mr X questions the correctness of the searches on the basis that the Council now asserts they own the land. Because the searches for Mr X’s property purchase occurred so long ago, and because the ownership of the land behind Mr X’s property is in dispute, we could not now call into question the information they provided.
50. In addition, it should be noted there is no dispute that there is a passageway of land behind Mr X’s property that is unregistered, which the Council does not own. Residents have access over it. The dispute is the extent of the land that forms the passageway.
51. I note Mr X questions the maintenance responsibilities of the land over many years. However, the Ombudsman expects complaints to be brought to him within 12 months of someone becoming aware of them. We are not in a position to investigate historic issues now. As the actual ownership of the land is in dispute any maintenance responsibilities would also be unclear.

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Agreed Actions

52. The Council agreed to send a written apology to Mr X for Officer A responding to his complaint. Officer A was named in the complaint, and council officers who are the subject are of complaints should not respond to them.

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Final decision

53. There was no fault in the way the Council responded to the boundary dispute issue. There was fault in the way the Council responded to Mr X’s complaint. I have now completed my investigation and closed my file.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman