Summary: Mr X complained about the Council’s handling of planning matters related to his garage, causing him distress and putting him to time and trouble. We do not have jurisdiction to investigate matters subject to court proceedings. We found the Council at fault in its communications with Mr X. We recommended the Council apologise to Mr X.

The complaint

1. Mr X complains the Council:
• wrongly told him to in fill his garage door, resulting in his incurring legal costs to show otherwise and putting him to two years’ time, trouble, distress and uncertainty seeking to resolve this.
• wrongly blocked access to his garage for over four months, causing inconvenience to his tenants.
• gave false information about him at two public planning meetings; that he did not have planning permission for his garage, causing embarrassment.
2. Mr X says that during this time his wife was very ill, he lost valuable time with her and she has since passed away.

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Parts of the complaint I have not investigated

3. I have investigated two of the complaints above. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

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’. 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)
5. 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)
6. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to 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)
9. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
10. If we are satisfied with an organisation’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

11. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
12. I gave Mr X and the Council 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

13. Mr X has provided copies of correspondence exchanged with the Council. And the Council has provided a detailed chronology of contacts. I have reviewed all the information provided but I will only refer to key points below.
14. In September 2019 the Council’s solicitor wrote to Mr X to say the access door to his garage faced Council land. He had no right to access the Council’s land to enter the garage. In the circumstances it asked that he remove the garage door and fill in the space. Mr X was to confirm within two weeks that he would do so. If not, it reserved the right to take any action needed to protect the Council’s interest.
15. Mr X responded that the previous owners had a right to access the Council’s land; that the garage door opened entirely onto his land and; that he had planning permission for the garage.
16. Further correspondence was exchanged however the Council’s solicitor maintained its position.
17. Mr X’s solicitor then wrote to the Council to say Mr X’s garage door opened onto his land and he could access it via his land, so he would not remove the door.
18. In December 2019 Mr X complained to the Council. He asked for compensation because the Council had erred in its September 2019 letter, causing him to seek legal advice and incur costs in doing so.
19. The Council responded in January 2020. It said the purpose of the letter was to clarify he did not have rights of access over its land. It considered it was under no obligation to compensate Mr X for the costs he incurred in corresponding with its solicitor and would not do so. It referred Mr X to the Ombudsman.
20. Mr X further responded that the Council had told him to fill in the wall or it may take further action. He explained he had to seek legal advice as to whether he was required to do this. He was not and so should not have been told to do so. It was on this basis he asked the Council to reimburse his legal costs and the Council had not addressed this point.
21. On 12 March 2020 the Ombudsman issued a decision on case 19018796. We decided not to investigate Mr X’s complaint that the Council’s solicitor had given incorrect information in its letter of September 2019. This is because we considered it unlikely we would find fault or injustice and because it was a matter better suited for the courts.
22. In February 2020 the Council’s planning committee met to consider a proposed development next to Mr X’s property. Its report referred to Mr X’s concerns that this would block access to his garage. The report said there were no rights of way over the site and no planning permissions for car access over its site. It referred to the “unauthorised development” not impacting its decision.
23. Mr X says in March 2020 he complained to the Council that he attended a planning meeting where its officer incorrectly said he did not have planning permission for the garage.
24. In March 2020 the Council’s planning committee met again to consider the proposed development. Its report explained it deferred its decision to clarify the site history, site boundary and right of way, and rights of access. It had since located a copy of planning permission granted for the garage. The report now said the garage was built lawfully. The development would prevent access across its site but the garage could still be accessed. The planning history within the report now included planning permission for the garage and the table that previously said the garage door was unauthorised was also amended.
25. On 19 March Mr X contacted the Council, again seeking a remedy for it providing incorrect information in its letter of September 2019 and also for saying he did not have planning permission during a planning meeting. He sought an apology, compensation for wasted time and reimbursement of legal fees.
26. On 20 March 2020 the Council wrote to Mr X with reference to a discussion held with him following the planning committee meeting. It apologised to Mr X for the way it had dealt with him. It also asked for him to provide invoices so it could reimburse his legal fees.
27. Further correspondence was exchanged, with Mr X chasing the Council up to 13 May 2020.
28. On 22 May Mr X wrote to the Council further to a call that had taken place the day prior. He said the Council told him during that call it would not make payment or continue correspondence. Mr X complained about this.
29. In November 2020 Mr X’s solicitor complained the Council had erected fencing preventing Mr X from opening his garage door.
30. The Council’s solicitor maintained the fencing was on the Council’s land.
31. Mr X said the Council should remove the fencing unless it could evidence this.
32. In January 2021 the Council’s solicitor sent Mr X architect drawings to support its decision.
33. Mr X disputed the Council’s position. He suggested the Council should pay for a roll up door or move the fencing.
34. The Council’s solicitor said it was awaiting instructions.
35. In April Mr X’s solicitor wrote further that the Council had not evidenced the fencing was on the boundary line. It should pay for a roll up door, move the fencing or instruct a boundary surveyor to ascertain the boundary.
36. In its response of July the Council’s solicitor maintained the fence was on the Council’s land though it was willing to relocate the fencing under certain conditions.
37. Mr X’s solicitor said he did not want the fencing relocated. He wanted a roll up door as previously agreed, and an explanation as why no issues were raised during any building inspection.
38. The Council’s solicitor said recollections regarding the roll up door differed. It was not within the building inspector’s remit to consider boundary issues. However, it was willing to agree a license for access.
39. Mr X continued to send correspondence as felt all his points were not addressed. However, the Council’s solicitor refused to engage further.
40. The Council’s chronology of contacts stops at August 2021 however further correspondence provided by Mr X and the Council shows communication continued.
41. In December 2021 the Council’s solicitor wrote to Mr X. It said it only requested that he fill in the garage but accepted the language used could have given him the impression the Council had a legal right that it intended to enforce if he did not take action. It apologised on behalf of the firm and offered £750 to reflect the legal costs Mr X had incurred.
42. On 8 December Mr X asked the Council why its officer told a planning meeting in February 2020 that he did not have planning permission for his garage and why it had not instructed a boundary surveyor.
43. On 10 December 2021 Mr X wrote to the Council further. He said now that its solicitor had accepted its error he wanted the Council to record his complaint, accept and apologise for the error, compensate him for the two years’ time he had spent trying to resolve this and explain the wasted funds defending this.
44. Mr X chased for a response and then complained to the Ombudsman that the Council would not address his complaint.
45. On 21 January 2022 the Council responded to Mr X. It said it had already responded to his queries of 8 December 2021. Its solicitor had written to Mr X and it would not make further comment, save that he was at liberty to instruct his own boundary surveyor.
46. On 23 January 2022 Mr X asked the Council to evidence it had already responded. And said it needed to rectify the error of its solicitor.
47. On 22 April the Council said it had already responded to his queries and it enclosed documents in support. It referred Mr X to the Ombudsman. On review of the Council’s documents I cannot see it addressed Mr X’s queries regarding comments made at a planning meeting or on whether it would instruct a boundary surveyor.
48. Mr X then contacted the Ombudsman.
49. The Council provided further information to the Ombudsman as follows:
• In 2019 it visited a Council site due for development and noticed a garage door opened up onto its site. It found that no system records to show it granted planning permission for this garage and its solicitor wrote to Mr X.
• It later found a paper record of the planning permission stored in its archives. The garage did in fact have a planning permission for its construction, although there was no access agreement.
• During a planning meeting in February 2020 its officer reported the garage did not have access rights over the application site. Mr X attended this meeting and remonstrated that he had planning permission for his garage resulting in the decision being deferred to allow further investigation.
• At a further meeting in March 2020 the board granted permission for the development. It has provided reports from both meetings.
50. I asked the Council for a copy of any response it sent Mr X to address his query as to why its officer gave incorrect information to the planning meeting in February 2020. The Council provided a copy of its letter to Mr X of 21 January 2022 which only says it had already addressed this query.
51. I also asked the Council for a copy of any response it sent Mr X to address his query as to whether it would instruct a boundary surveyor. The Council referred to its letter to Mr X of 21 January 2022 which only says it had already addressed this query. It also referred to a conversation between Mr X and its officer following the March 2020 planning meeting. On my review, this does not include any response to the query.
52. In comments on a draft decision Mr X said:
• He emailed the Council in March 2020 with reference to a discussion about the garage door. In its response, the Council did not deny this took place. This supported his assertion that the Council agreed to provide him with a roll up door during that discussion. His brother witnessed this conversation.
• Despite the Council’s solicitor confirming they had written to him incorrectly, the Council continued to say it had made no mistakes and continued to refuse to apologise. This should be included in the decision.
53. In comments on a draft decision the Council said:
• Mr X had intimidated and harassed its officers since 2019. It asked that the Ombudsman take into account Mr X’s behaviour in making its final decision.
• The Ombudsman’s decision not to investigate in March 2020, informed its strategy. It would be unfair for the Ombudsman to find fault now, taking this into account.
• As its solicitors provided a remedy in December 2021 Mr X did not suffer any loss.
• It was entitled to decide not to reimburse Mr X.
• In June 2020 Mr X issued proceedings in the County Court to recover his legal costs. It has provided a copy of this claim. In his claim Mr X said he paid for legal advice to address the Council’s solicitor letter of September 2019. The Council later agreed to refund his costs but then refused to do so. He sought a payment to cover his legal fees and payment for the time spent dealing with the Council’s errors.
• It settled this claim out of court by making payment direct to Mr X in February 2021 without admitting liability. Mr X refused to accept its offer of settlement due to the lack of apology or payment of interest. He tried to return payment by sending a cheque to the Council in the same sum. However, the courts struck out his claim in March 2021 as it considered the matter settled. The Council did not cash the cheque.
• It has enclosed a copy of a court order dated March 2021 which says the court has struck out Mr X’s claim.
• Its solicitor made payment in December 2021 not realising it has already paid this sum in February.
• It accepts it erred in referring to the garage as unauthorised development in a February 2020 planning meeting. However, this was quickly rectified in March 2020 and an explanation provided during that planning meeting. Its officer also spoke to Mr X and apologised by email on 20 March 2020. There is no evidence Mr X suffered loss or damage due to its error.
• The March 2020 planning committee report explained how the error arose. Its officer confirms they explained again during the meeting, in Mr X’s presence and, in discussion with him following the meeting. It had therefore already addressed the query raised by Mr X in December 2021 as to why it provided incorrect information in February 2020.
• It considered it had already addressed Mr X’s query regarding a boundary surveyor. This was because its solicitor had explained its position as to the boundary line with supporting evidence. And because it told Mr X he could instruct his own surveyor if he remained unhappy.
• It acknowledged the timescales in addressing Mr X’s complaint. However, the Ombudsman should take into account it was dealing with substantial and excessive correspondence from Mr X at this time, sent to multiple staff, despite it imposing a single point of contact.
• It queried the Ombudsman’s jurisdiction to deal with the remaining complaints.

Findings

54. The Ombudsman decides whether to investigate based upon the information available at the time.
55. In March 2020 the Ombudsman decided not to investigate Mr X’s complaint that the Council’s solicitor had given incorrect information in its letter of September 2019. Once the Council’s solicitor accepted fault in December 2021, this was new information which informed our recent decision to investigate.
56. In comments on a draft decision the Council evidenced Mr X used his right to seek a remedy on this same complaint from the courts. Because Mr X took the matter to court, it is not within my jurisdiction to investigate. I have therefore amended my decision, taking this into account. This means I have removed any findings regarding the solicitor’s letter and the Council’s handling of any complaint about this.
57. The matters Mr X complains of began in September 2019 but were ongoing into 2022. I therefore consider it appropriate to investigate the full period, subject to the above.
58. The Council incorrectly referred to Mr X’s garage as unauthorised development during its February 2020 planning meeting (whether verbally or in writing by way of its report). This is fault. Mr X suffered distress. This is injustice.
59. I am satisfied the Council identified and corrected its error at the March 2020 meeting. While Mr X says the Council repeated its error, I attach more weight to the Council’s written report. I am also satisfied the Council apologised for its error by email of 20 March 2020. I consider this was a suitable remedy.
60. From November 2020 to July 2021 Mr X corresponded with the Council regarding a fence which prevented him opening his garage door. The Council explained it had put a fence on its own land, it provided evidence to support its position, and it suggested ways to resolve the matter. The Council did not have to provide further evidence or instruct a boundary surveyor just because Mr X asked for this. The Council had evidence based reasons for its decision the fence was on its own land. I find no fault in its decision making. It is not within my remit to decide a boundary dispute. Any further dispute in this respect is better dealt with by the courts.
61. To address the Council’s comments, I exercised discretion to investigate the complaint about the fencing blocking access in the first instance, as I had enough information to reach a finding on whether there was fault in the Council’s decision making. I considered it would not be reasonable to direct Mr X to the courts on this point, putting him to further time and expense.
62. Mr X says the Council offered to pay for a roll up garage door however the Council denies this. Where it is one person’s word against the other I cannot find, even on balance, that the Council is at fault. On review of correspondence exchanged, this does not refer to the Council’s agreement to pay for a roll up door, only that there was some discussion about the garage. And, while I acknowledge Mr X’s sibling may provide a supporting account, I attach little weight to his testimony given the time passed and because he is not an independent witness.
63. In December 2021 Mr X asked the Council why its officer gave incorrect information at the planning meeting. The Council assured Mr X it had addressed this query previously but did not provide evidence of this or offer further explanation. I consider this amounts to fault. Mr X was caused frustration. This is injustice. I note the Council has since provided an explanation in response to my enquiries. Namely, it had no record of planning permission on its system but later found this in its archives. There is insufficient evidence to say it made this clear to Mr X previously. I say this because I have not seen any evidence Mr X had a copy of the March 2020 committee report, because it will be one person’s word against the other as to anything said during or following the March 2020 meeting and because Mr X raised the query.
64. In December 2021 Mr X asked the Council why it would not instruct a boundary surveyor. The Council said it had already addressed this query and suggested Mr X could instruct his own surveyor. However the Council did not provide evidence this had been addressed or offer a further response to clarify matters. I consider this amounts to fault. Mr X was caused frustration. This is injustice. The Council has since clarified its position; namely it considers there is no need to instruct a surveyor given it already provided evidence justifying its decision as to the boundary line.
65. Mr X was clearly unhappy with the Council’s response of 21 January 2022 but the Council did not decide to progress to stage 2 until March and did not respond further until 22 April. This delay is fault. Mr X was put to avoidable time and trouble. I acknowledge the Council’s comment that Mr X placed excessive demands on its time which contributed to this delay.
66. My role is to investigate whether the Council is at fault and then to consider whether this caused Mr X injustice. While I acknowledge the Council has experienced difficulties in its dealings with Mr X, this does not negate any fault by the Council. Sometimes a complainant’s own actions can contribute to or cause further injustice and we will take this into account in assessing an appropriate remedy.
67. I consider the faults identified in this case did not cause significant injustice. Irrespective of Mr X's part, I consider an apology is a suitable remedy.

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Agreed action

68. To remedy the injustice identified above the Council should take the following actions within one month:
• Provide Mr X with a written apology for the faults identified.
69. The Council has accepted my recommendations.

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Final decision

70. I find the Council at fault in its communications with Mr X. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

71. I have discontinued my investigation into Mr X’s complaint that the Council wrongly told him to in-fill his garage door. This was the subject of court proceedings and I therefore have no jurisdiction to investigate this complaint or any matter intrinsically linked to it.
72. In correspondence with the Council Mr X complained about its responses to his requests under the Freedom of Information Act and/or Subject Access Requests. I have not commented upon or investigated these matters. This is because the Information Commissioner’s Office is the appropriate body to consider any complaint in this regard.
73. Mr X continued to correspond with the Council after contacting the Ombudsman. I have not commented upon or investigated these matters. This is because any complaint was premature at the time.

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Investigator's decision on behalf of the Ombudsman