Summary: Mr B complains that the Council wrongly accused him of encroaching on Council land. He says that this has caused him and his wife considerable stress and they have been put to considerable time & trouble responding to these false allegations. The Council has already accepted that there was fault in the way it dealt with these matters. However, the Ombudsman considers that the injustice caused warrants a financial remedy. The Council has agreed to apologise to Mr and Mrs B, pay them £300 for their distress and time & trouble, and take steps to ensure that officers are familiar with the Council’s procedures.

The complaint

1. Mr B complains that:
• There was fault in the way that the Council carried out an investigation into alleged encroachment by him onto Council land, and in the way it responded to his complaint about this matter.
• He has been put to considerable time & trouble and expense in responding to this matter and proving that the Council acted wrongly. He considers that the Council should reimburse him £4,128 for costs he has incurred, compensate him for his distress and retract comments made about him contacting an officer involved in these matters.

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The Ombudsman’s role and powers

2. We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word “fault” to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as “injustice”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I have considered Mr B’s written complaint and supporting correspondence. I have made enquiries of the Council and considered its response and supporting papers. Mr B and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision

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What I found

What happened

5. Mr B lives in a detached house with a wooded area owned by the Council to the rear of his back garden.
6. In April 2018, the Council received a complaint from a third party about the cutting back of shrubs and small trees to the rear of Mr B’s garden.
7. The case was assigned to a Local Response Officer (LRO). LROs undertake a wide range of inspection and enforcement activities for the Council, including planning enforcement. Under the Council’s planning enforcement policy, cases are given priority according to the degree of planning harm. The case was given the lowest priority, Priority 4, which includes minor breaches and possible private disputes.
8. The LRO visited in early May and took photographs. She asked the Tree Officer to visit to check if any trees had been damaged. The Tree Officer visited in early June and spoke with the LRO. The LRO recorded that the Tree Officer had assessed the area, that some plants of minor significance had been removed, and others planted which would have to be removed.
9. Later that month, Mr B emailed the Council’s customer services centre to say that he had been fencing in land to the rear of his property and had been contacted by another resident who claimed the land. He asked if the area of land remained as open space in Council ownership or if it had been sold to residents of the next road. He also called the Council in early July.
10. The LRO visited the site again in early July and took a photograph showing the new fence to the rear of Mr B’s property. She noted that Mr B took a video recording of her taking photographs.
11. After checking with several departments, the LRO wrote to Mr B at the end of the month and explained that she had received a report of alleged encroachment onto Council land. She said she visited the site and it had been established that the boundary has been extended to include Council owned land. She requested that Mr B remove the additional fence erected on Council land and any additional planted foliage and cease the use of land not within his ownership. She advised that “Failure to do so may result in formal enforcement action being taken”. She also enclosed a map showing the boundary.
12. Mr B left a message for the LRO the following day but received no response. The following week he sent the Council a Freedom of Information request in relation to the threatened enforcement action. The Council responded three days later and explained the action it had taken. It stated:

“The Council has undertaken investigations and has concluded that Council land has been encroached onto and a fence erected without permission. Failure to cease use of Council land and remove the fencing will result in this case being transferred to the Legal Department for consideration of formal enforcement action.”

13. Mr B responded by email. He disputed that the boundary had been extended and said he had not made any new planting. He said the Geographic Information System (GIS) map used was not accurate for determining boundaries and the investigation had been inadequate. He suggested that the Council arrange to visit at a mutually agreed time to survey his property so as to agree the boundary.
14. Two weeks later, as he had heard nothing further, he emailed the Council again. He explained that the false accusations and threats of enforcement action were causing him and his partner stress and sleepless nights. He said that, given the dispute, they had been unable to complete the works so the fence was unfinished and untreated. He was shortly due to go on holiday but was anxious at what would happen in the meantime. He was concerned about further unannounced visits and asked the Council to back up its allegations within seven days.
15. The next day, a Planning Enforcement Officer made an unscheduled visit to Mr B’s property at 18:55, as it was on the officer’s way home from work. He said he was happy to reschedule if it was inconvenient. Mr B was unhappy at the unannounced visit and asked him to email to rearrange a visit. The officer emailed the following day, after which Mr B agreed a date for the visit and sent several questions about the boundary and alleged new planting.
16. On 10 September, the Enforcement Officer and the Tree Officer met Mr B on site. The Enforcement Officer recorded that Mr B was clearly annoyed during the meeting. The officers checked and determined that the clearance and new fencing were both within Mr B’s land so there was no encroachment. The Tree Officer said he did not recall saying that there had been new planting in the area. The Enforcement Officer apologised and explained that the first letter sent should have been to request contact and should not have threatened legal action.
17. Mr B followed up by sending minutes of the meeting. The Council provided comments on the minutes, as Mr B had requested, and contact details for making a complaint. After discussing the case with his line manager, the Enforcement Officer wrote to Mr B on 29 October, advising that him that the Council would take no further action and apologising for the inconvenience caused.
18. The following month, Mr B emailed the Council. He set out why he was unhappy with the content of the Council’s letter of 29 October. He requested compensation totalling £4,138 and a written agreement to determine the boundary between his and the Council’s land. He drafted an agreement and boundary plan which he sent to the Council.
19. The Council agreed to reimburse the £10 cost of Mr B obtaining Land Registry documents but not to any further payment.
20. In January 2019, the Council prepared its own boundary agreement and scaled boundary plan. It also received a complaint from Mr B. It responded to his complaint by letter in February at the first stage of its complaints procedures. Mr B did not receive the letter so the Council resent it, after which Mr B escalated his complaint in April 2019. The Council responded to his second stage complaint but he remained dissatisfied with its response.

My assessment

21. There is a great deal of detail in the correspondence between Mr B and the Council. However, it is not for the Ombudsman to answer all the questions that Mr B may have. Rather, the Ombudsman’s task is to consider what fault there has been and what action, if any, is appropriate to remedy any injustice.

Allegations of trespass and threats of enforcement action

22. I would first observe that the Council received a complaint of encroachment on its land. It was therefore appropriate for it to investigate this matter. Had matters been dealt with properly, it is likely that this would have still involved discussions with Mr B and a site visit.
23. However, the Council did not deal with matters properly and this caused Mr B more stress and time & trouble dealing with matters than it should have. The Council did not investigate matters properly at the outset in that it did not apply the boundaries on the GIS map accurately. It should not have sent Mr B a letter threatening enforcement action at the outset. This was a breach of procedures. It also should not have repeated this threat in response to Mr B’s FoI request.
24. I note that, in response to the Council’s threats of legal action, Mr B contacted the Council several times. He asked it to back up its allegations and to contact him to arrange a visit to his property to discuss matters. He clearly set explained the stress the allegations and threatened legal action were causing and his concerns about further unannounced visits. However, it took the Council a month to visit to discuss matters, and that visit was again unannounced. It is understandable that Mr B may not have felt well-disposed to officers in the circumstances.

Complaint response

25. In addition to the threatened enforcement action, there were several other areas of concern which Mr B pursued through the complaints process and where he continues to disagree with the Council’s response.
26. Mr B has questioned the statement that the LRO was acting “in good faith”. It is clear that there were errors at the outset of the investigation. However, it is the case that errors occur and I see no reason to question the officer’s intent.
27. Mr B was unhappy to have been wrongly accused of new planting outside his boundary. He also says that the Tree Officer has denied making such comments. I was not a party to the conversation between the LRO and the Tree Officer, and their recollections of what was said are different, so I cannot determine what was said. However, any such allegations were based on an incorrect understanding of the location of the boundary, and the Council accepts that there was no planting outside the boundary.
28. Mr B takes issue with the Council’s suggestion that the matter would have been resolved without legal action, irrespective of his own actions. He is also upset at the Council’s suggestion that “the matter could have been resolved with normal communication via telephone, email, and site visits”. He points to the fact he had already emailed the Council with questions about the ownership of the land in June 2018, without response, and had tried to speak with the LRO in response to her initial letter.
29. I think it is likely the case that the matter would not have proceeded as far as legal action - any proper reading of the plans by the Council would have shown that there was no encroachment and therefore no grounds for legal action.
30. However, it was the Council which instigated these events by wrongly threatening legal action, and Mr B could not know whether the Council would pursue such action. The Council did not investigate properly at the outset and took three months to confirm in writing that it would take no action. Given the Council’s actions, it seems to me entirely reasonable that Mr B should wish to have written confirmation from the Council of the boundary line to avoid any repetition of such problems. Moreover, given the Council’s errors, he was fully entitled to pursue his complaint through the Council’s procedures.

Remedy

31. I have therefore considered whether a financial remedy would be appropriate for the injustice caused to Mr and Mrs B. Mr B has claimed costs of £4,138 and itemised the basis for those costs. The Council has now suggested that a payment of in the region of £200 might an appropriate remedy.
32. When considering remedies, the Ombudsman is guided by our Guidance on good practice: Remedies. I am afraid that the figure suggested by Mr B is considerably higher than would be suggested by our guidance. Normally, a payment for distress would fall in the range from £100-£300. Likewise, a payment for unnecessary time & trouble would also fall in the range from £100-£300.
33. Given that this matter has clearly caused Mr and Mrs B some distress, I consider that a payment of £200 for distress would be appropriate. I consider that a payment of £100 for Mr and Mrs B’s time & trouble would also be appropriate, taking into account the time & trouble involved in responding to the initial incorrect accusation, but also having regard to the likelihood that there would have been some investigation required even if the matter had been dealt with properly.

Agreed action

34. The Council has agreed to the Ombudsman’s recommendation that, within six weeks of the decision date on this statement:
• The Council apologise to Mr B in writing for the way in which it has dealt with this case and for the distress that this has caused him and his wife.
• In that apology letter, the Council acknowledge that:
• Mr B contacted the Council on several occasions to try to resolve matters;
• given the threats of legal action, it was reasonable for Mr B to seek a formal agreement over the location of the boundary; and
• Mr B was perfectly entitled to pursue his concerns through the Council’s complaint procedures when he was unhappy with its response to his concerns.
• The Council pay Mr B £300 for his time & trouble and distress.
• The Council confirm the steps it has taken to ensure that officers do not prematurely send letters threating legal action.

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Final decision

35. Mr B and the Council, I have closed my investigation into his complaint as I consider the agreed actions set out above represent a suitable remedy for the injustice caused to Mr B.

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Investigator's decision on behalf of the Ombudsman