Summary: Mr B complains the Council declined to maintain a fence on the boundary of his land and the highway. Mr B says the fence has fallen into disrepair and the Council is responsible for its maintenance. The Ombudsman will discontinue the investigation as this is a legal dispute and it is reasonable to expect Mr B to take court action.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council will not take responsibility for repairs to a fence on the boundary of his land and an adopted road. Mr B says the Council is responsible for the fence’s maintenance.

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The Ombudsman’s role and powers

2. 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

3. I reviewed the information provided by Mr B and the Council. I sent a copy of my draft decision Mr B and the Council for their comments.

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What I found

4. Mr B has an alternative legal remedy, in that he could bring legal proceedings against the Council. In these circumstances, we cannot normally investigate.
5. I have considered whether to exercise discretion to investigate Mr B’s complaint. I do not consider there are grounds on which to do so. It is clear the outcome Mr B wants from the complaint is for the Council to repair the fence. The Council says it will not do so as it is not legally responsible for the fence’s maintenance. This is a question of where the legal responsibility for maintenance of the fence lies.
6. It is not in the Ombudsman’s jurisdiction to adjudicate on legal disputes. I could not decide the Council is responsible for maintenance of the fence or direct it to pay for repairs. Only a court can make such findings. I therefore cannot achieve the outcome Mr B wants by continuing with the investigation.
7. I can only look into administrative fault by the Council. This might include whether the Council properly communicated with Mr B, at the time of construction, about who would be responsible for maintenance. However, as this took place more than 10 years ago, it is unlikely I could meaningfully look into this point. It is also unlikely I could recommend any significant or helpful remedy, should I find fault. I certainly could not achieve the remedy that Mr B is looking for. Any legal proceedings, should Mr B follow that option, would likely include a review of the communication from that time.
8. I will therefore not exercise discretion to investigate this complaint.

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Final decision

9. I will discontinue this investigation on the basis the complaint is out of our jurisdiction. Mr B has an alternative legal remedy.

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Investigator's decision on behalf of the Ombudsman