Summary: The Ombudsman will not investigate Mr X’s complaint about a letter from the Council’s solicitors concerning rights of access and planning permission for his garage. It is unlikely we would find fault by the Council or that we could recommend the Council reimburses Mr X for his legal advice. The underlying issue is also a matter more appropriate for the courts.

The complaint

1. The complainant, Mr X, complains the Council’s solicitors advised him to block up the entrance to his garage as it did not benefit from planning permission and opened onto land owned by the Council. Mr X instructed solicitors to deal with the matter at a cost of £750 and says the matter has taken up his time.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), 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. I reviewed Mr X’s complaint and the Council’s responses. I also considered the content of the letter sent to Mr X by the Council’s solicitors. I shared my draft decision with Mr X and discussed it with him.

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What I found

5. The Council intends to develop land it owns for new housing. One of the sites it has earmarked for development lies adjacent to Mr X’s garage which has an ‘up and over’ door for access. The Council’s solicitors wrote to Mr X in September 2019 stating:

“Our client is in the process of investigating and considering redevelopment options in relation to the Council’s Land.

During the course of these investigations, it has come to our client’s attention that a garage has been constructed on the adjoining boundary between your property… and the Council’s Land. The garage includes a vehicular access door facing the Council’s Land.

Notwithstanding whether you and/or the previous owners… had the right to undertake such works… you have no right to access the Council’s Land from the garage. Furthermore, you have no right to pass over the Council’s Land to access the garage. Any attempt to access the Council’s Land… is without our client’s consent and amounts to trespass.”

6. The Council’s solicitors noted the garage door appeared not to be in use and requested Mr X remove it and fill it in.
7. Mr X appointed solicitors to advise him on his position and believes the Council should reimburse him for his costs, which amount to £750. He says there is no legal requirement for him to remove the garage door and suggests the Council was at fault for failing to investigate whether the garage itself had planning permission, which the Council now accepts it does.
8. The Ombudsman will not investigate this complaint. Mr X’s concerns focus on the solicitor’s suggestion that his garage is unauthorised but this is not what their letter said. The solicitors specifically reserved the Council’s position on this point and their letter focused on the fact Mr X had no permission from the Council to access his garage over its land. Mr X’s subsequent letters show he disputes this and the issue is ultimately a matter for the courts.
9. It is not in doubt that Mr X sought legal advice on the content of the solicitors’ letter but this was his choice. It was also not the result of any fault by the Council and we could not therefore recommend the Council reimburses him for his costs.
10. If Mr X believes he has established a lawful right of access over the Council’s land, and in light of the fact the Council intends to erect a boundary structure which will impede Mr X’s claimed access rights, it would be reasonable for Mr X to take the matter to court. As part of his application he may apply to the court for an award of costs against the Council. The Ombudsman cannot resolve boundary disputes.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault by the Council causing Mr X injustice and the substantive issue concerns a matter which it would be reasonable for him to take to court.

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Investigator's decision on behalf of the Ombudsman