Summary: We will not investigate this complaint about the Council’s conduct regarding the wrongful claim of Mrs X’s land as a public highway. This is because the substantive complaint is late and we cannot investigate issues that have already been dealt with in court.

The complaint

1. Mrs X complains the Council wrongly claimed part of her land was a public highway. She also complains about the Council’s conduct around this error.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I considered the information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In 2020, Mrs X submitted a planning application for development of land owned by her. In consultation of the application, the Council’s highways team made a public comment stating that the land was part of the public highway. Following this, there were a number of neighbour consultations referring to the land as being part of the public highway and objecting to development as it would prevent the use of the land for public parking.
8. Mrs X says the Council’s comments the land was part of the public highway was wrong and that the error resulted in incorrect considerations being taken into account in the planning process. She also states that this caused neighbours to wrongly believe the land was available for public parking, leading to frequent trespass on her land. She states Council officers made comments to neighbours supporting the use of the land as public parking, which encouraged the trespass. Mrs X complains the Council did not rectify their error and continued to misidentify the land as part of the public highway until she took court action against them.
9. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the proceedings did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
10. In this case, Mrs X chose to pursue legal action to resolve the matter of ownership of the land in question. Therefore, we cannot investigate the Council’s comments or position about the ownership of the land because this dispute was considered and decided in court.
11. Mrs X also complains about the costs she incurred in having to pursue legal proceedings. We cannot investigate this because this matter has been considered by the court as part of the legal proceedings.
12. Further, the original planning application was submitted in 2020, and Mrs X was aware of the Councils conduct at that time. We normally expect people to complain to us within twelve months of them becoming aware of a problem.
13. Mrs X did not complain to the Ombudsman until March 2025. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so.
14. I have considered whether to exercise our discretion to investigate the late parts of the complaint, but I have seen no good reasons to do so. Mrs X had known about the Council’s error since 2020. I recognise that Mrs X took legal action in this time to demonstrate her land ownership. However, any complaint about the Council’s conduct in accessing her planning application could have been brought to us sooner. Therefore, I have not exercise discretion to consider the late parts of this complaint.
15. Finally, Mrs X complains in 2024 following the legal action, the Council continued to interfere with her land ownership. She states a council officer may have moved her boundary stones back a meter from the boundary. She also states an internal email was sent by a council officer saying they disputed land was still considered part of the highway.
16. I recognise Mrs X is unhappy at the Council’s actions, but we will not investigate this part of the complaint because the injustice caused by these alleged faults is not significant enough to justify our involvement.

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Final decision

17. We will not investigate Mrs X’s complaint because the substantive complaint matters have been considered in court and because the substantive complaint is late. This places the complaint outside our jurisdiction. The remaining elements of the complaint have not caused a significant enough injustice to justify an investigation.

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Investigator's decision on behalf of the Ombudsman