Summary: We will not investigate this complaint about the alleged breach of a covenant. Mrs X can reasonably take court action. It is also unlikely we would achieve what Mrs X wants.

The complaint

1. Mrs X complains the Council has breached a covenant about the barrier it should provide between land it owns and land Mrs X owns. Mrs X says this affects her use of the land and she has suffered expense and inconvenience.

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The Ombudsman’s role and powers

2. 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)
3. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. A covenant such as this is a contractual obligation the courts can enforce. So the restriction in paragraph 2 applies. Mrs X says she cannot afford to take court action. The possible cost of court action does not, in itself, automatically mean it is unreasonable to take court action such that the Ombudsman should investigate instead. Mrs X could ask the court to award her costs if her court action succeeds. The value of the land with and without the appropriate boundary treatment in place might be significantly different, so the potential legal costs would not necessarily be disproportionate to the benefit Mrs X is seeking to protect. It is properly for the courts, not the Ombudsman, to interpret duties under covenants and to decide what to do about any breach.
7. Also, the Ombudsman could not order the Council to do anything, whereas the court could make an order if it sees fit. If we were to investigate and find fault in any Council decision or action related to what the covenant says about the boundary, it is unlikely we would recommend the Council provide the boundary Mrs X wants. It is more likely we would just recommend the Council revisit the flawed decision or action. Enforcement would still be a matter for the courts. So it is unlikely investigation by us would achieve what Mrs X wants in practical terms.

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Final decision

8. We will not investigate Mrs X’s complaint. It is reasonable to expect Mrs X to take court action. It is also unlikely we would achieve what Mrs X wants.

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Investigator's decision on behalf of the Ombudsman