Summary: The investigation of this complaint will be ended. This is because there is no worthwhile outcome achievable by investigation. The boundary dispute will need to be resolved in the courts as the two parties cannot agree. The Council has explained to Mr X the options for the access to his property and the Ombudsman is not able to change the available options, so investigation cannot provide the outcome Mr X wants.

The complaint

1. The complainant, who I shall call Mr X, says the Council has cut off access to his farm during the improvement to a road junction. Mr X says that he has had to use an alternative access, which he may not have a legal right to do so permanently. Mr X also complains the Council has replaced a boundary fence in the wrong place.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I read the papers put in by Mr X and discussed the complaint with him.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Mr X says the Council has replaced a boundary fence in the wrong place. The Council says the fence is the right place. The Ombudsman is not able to resolve boundary disputes, this is for the courts to make a judgement on. So, there is no worthwhile outcome from investigating this complaint, as we cannot resolve the dispute. Only the courts can do this if the parties themselves cannot reach agreement.
8. The Council accepts that Mr X can no longer use his original access. I can see they first talked to Mr X about the scheme in 2019. The Council suggested 2 alternatives to Mr X in 2021 after surveys as Mr X’s drive would be at a different level to the main road after the works. The Council said that either Mr X’s drive could be regraded but this would mean some trees with a Tree Preservation Order would be removed or a retaining wall would be constructed, which would block Mr X’s access to the main road.
9. In September 2022 the Council provided a new plan which avoided the removal of the trees but had a steeper gradient and set back gates. In November 2022 the Council said that if Mr X did not agree to the replacement design his access would be closed. In June 2023 the Council told Mr X that it would seek to avoid any damage to trees but if Mr X did not agree to the replacement design the works in the area would be completed. Mr X has not agreed to the replacement design and the works in the area are now complete.
10. Mr X has another access to his site, which he can use, but he says that this is by goodwill rather than a legal right.
11. I have considered Mr X’s complaint but I do not consider there is any worthwhile outcome the Ombudsman can achieve. Mr X wants the Council to alter the main road to restore his access without damaging his trees. The Council made it clear to Mr X in June 2023 that he needed to make a decision before the works were completed. Now the works are complete I cannot see that it would be a good use of public money for the Council to redo a road scheme involving a major road junction where Mr X has an alternative access and has had the opportunity to keep his existing access, albeit with changes that he would have preferred not to happen. Mr X has been aware of the options available to him for 2 years and I do not consider that investigation now, will result in a change to the situation.

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Final decision

12. I have ended my investigation and do not uphold Mr X’s complaint. I cannot achieve a worthwhile outcome from further investigation as I am unlikely to be able to achieve the remedy Mr X wants.

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Investigator's decision on behalf of the Ombudsman