Summary: We will not investigate this complaint about mistakes made by the Council when it adopted a road that leads to the complainants property. This is because the complaint is late and because the complainant could take the matter to court.

The complaint

1. The complainant, who I will refer to as Mr C, complains that the Council failed to protect the right of way to his property when it adopted a road. Mr C says this means access to his drive and garage are restricted and the Council should reverse its decision to adopt the road.

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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. 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

5. I considered Mr C’s complaint and the additional information he provided, including the Council’s response. I have sent a draft version of this decision and invited Mr C’s comments.

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What I found

6. In 1980, the Council adopted the road that leads to Mr C’s property. In February 2020, Mr C contacted the Council about a neighbouring property which he says had encroached from their boundary.
7. Mr C says the Council had changed the boundaries when it adopted the road, and this has caused issues with him being able to access his driveway and his garage.
8. The Council carried out a site inspection and reviewed plans. It concluded that the highway has not changed since its adoptions and that there was no evidence of any errors during the adoption process.

Assessment

9. I will not investigate this complaint. This is because the adoption of the road happened more than forty years ago, which is too long ago to be investigated by us now and so the complaint falls outside our jurisdiction.
10. The length of time that has passed since the events also means we would be unlikely to reach a robust decision in this case. This is because we are less likely to be able to gather enough evidence to reach a sound judgement. Even if some evidence is available, it is unlikely it would be reliable, and provide a full picture.
11. Even if the time restrictions did not apply, the dispute between Mr C, his neighbour and the Council is essentially a legal one about land boundaries, and as such it is for the courts and not the Ombudsman to determine. Mr C therefore has a legal remedy against the Council which we would reasonably expect him to use and for this reason too, the complaint falls outside our jurisdiction and will not be investigated.
12. Mr C says he may choose to take the matter to court, but that the Council are withholding information from him about the adoption which is impeding any legal action. However, Mr C could make a Freedom of Information Request and ask for the information that he feels is being withheld from him. If he disagreed with the Council’s response, he could complain to the Information Commissioner.

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Final decision

13. We will not investigate this complaint. This is because it is a late complaint, and it would be reasonable to expect the complainant to take the matter to court.

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Investigator's decision on behalf of the Ombudsman