Summary: The complainant says the Council refuses to add an informative about a restrictive covenant on a development site. The Ombudsman does not intend to investigate this complaint. It is late. And we do not consider Mr X has suffered a significant personal injustice because of the Council’s decision.

The complaint

1. The complainant, whom I shall call Mr X, says that the Council failed to include reference to their eastern boundary in the informative it placed on the land charge register in 2015.

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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. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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:

• the fault has not caused injustice to the person who complained
• the injustice is not significant enough to justify our involvement

(Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

5. I considered the information provided by Mr X, the Council, and the previous decision by the Ombudsman on this case.
6. Mr X commented on the draft version of this decision.

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What I found

7. Mr X owned land surrounding his property. He sold one parcel of land and imposed a restrictive covenant. The aim of the restrictive covenant is to control the ability of others wishing to create an access to his field. The restrictive covenant prevents access for any purposes.
8. Some years ago, the Council received a planning application for development of land next to Mr X’s property. Mr X said the report for the planning application did not properly explain the existence of the restrictive covenant which prevents access from the open space land onto the link road. He was concerned because faults in the report and minutes may encourage future buyers of the new properties to believe they could create a rear access, in breach of the restrictive covenant.
9. He asked the Council to add an informative to the Land Charges register about the restrictive covenant. The Council refused to do so.
10. In 2015, Mr & Mrs X complained to the Ombudsman. During the investigation, the Council agreed to place an informative on the land charges register to reflect their requirements. They were happy with this and the investigation ceased.

What happened

11. The Council received a new planning application for the site next to Mr X’s property. Mr X complained to the Council saying:

“it was agreed an Informative was placed on the Land Charges Register. However, only the northern boundary was highlighted in the informative. It is my assertion the eastern boundary should have been included, although this was denied by the City Council and we did not raise this at the time with the Ombudsman."

12. The Council refused to add another informative. It confirmed the Planning Officer was aware the restrictive covenant affects the North and East boundaries when deciding the application. It refused to add another informative, stating it to be unnecessary and impracticable.

Assessment

13. The law says a complaint must be made to the Ombudsman within 12 months of the person complaining becoming aware of the matter.
14. Mr X confirms he was aware the informative did not refer to the eastern boundary when it was added in 2015. I asked why he did not raise the issue at the time. He says the planning permission granted when he made his first complaint lapsed. so there was no reason to complain. He believes his complaint is not late because a new application has been made and the eastern boundary has become an issue. He says the Council’s refusal to include the eastern boundary on an informative is in direct opposition to its reasons resolving the issue in 2015.
15. I disagree with Mr X. He confirms he was aware the eastern boundary was not included in the informative. He says he told the Council in 2015 it should have been included but the Council refused. He was therefore aware of the matter and his complaint is therefore late.
16. I have discretion to consider late complaints if there is good reason to do so.
17. In this case Mr X is concerned the Council’s refusal to add an informative about the northern boundary fails to highlight there can be no access for any purposes on the eastern boundary. This includes heating pipes.
18. However, the Council confirms the case officer is aware of the restrictive covenant and the implications for access.
19. Also, the fact restrictive covenants exist is not a material planning consideration. Mr X confirms he has written to the developer reminding them of the obligations raised by the covenant. Therefore, the developer is already aware of the covenant. Planning permission does not permit breaching covenants – this is a matter between Mr X and the developer. Therefore, I consider the Council’s decision not to add an informative about the eastern boundary does not cause Mr X a significant personal injustice.
20. Mr X says he is concerned that if the developer breaches the covenant, he will incur legal costs. However, this will be matter between the developer and Mr X, not the Council. He also believes an informative will protect potential purchasers of homes built on the site from future problems. This is not an injustice suffered by Mr X.
21. In view of the information detailed in the above paragraphs, I do not consider there are any good reasons to exercise discretion and investigate this late complaint.

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Final decision

22. I will not investigate this complaint. The complaint is late as he was aware the informative does not refer to the eastern boundary in 2015. As restrictive covenants are not material planning considerations, I do not consider Mr X has suffered a significant personal injustice which flows from the Council’s decision. There is no reason to exercise discretion in this case.

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Investigator's decision on behalf of the Ombudsman