Summary: We will not investigate this complaint about the Council’s refusal to accept responsibility for maintenance of a wall adjacent to the public highway. This is a private boundary dispute and we cannot determine legal ownership of land. The courts are better placed to decide civil disputes.

The complaint

1. Miss X complained about the Council’s refusal to accept responsibility for repairing or maintaining a wall which she believes is a retaining wall for the highway. She also objects to the Council’s decision to replace existing fencing with a type she does not approve of.

Back to top

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
• there is another body better placed to consider this complaint.

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

Back to top

How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Miss X says she uncovered a wall overgrown by vegetation which she believes is part of the highway infrastructure. She wants to carry out works to her garden and believes the wall should be repaired. The Council told Miss X that its records do not show any maintenance history for the wall and that she should not compromise its integrity with any works as this could affect the stability of the highway.
6. Miss X was dissatisfied with the response and made a further compalint. The Council advised her to seek independent advice and check her property deeds as it has advice from its legal team that there is no record of Council ownership. We cannot determine the ownership of boundaries or land and only the courts can do this where there is no agreement between the parties involved.
7. The Council told Miss X that it did intend to replace an existing overgrown fence with a wooden one to safeguard pedestrians. Miss X says the fence will not be in keeping with current features. The Council is the highway authority and it has powers to replace infrastructure which it is responsible for without public consultation. There is no appeal against these decisions.
8. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.

Back to top

Final decision

9. We will not investigate this complaint about the Council’s refusal to accept responsibility for maintenance of a wall adjacent to the public highway. This is a private boundary dispute and we cannot determine legal ownership of land. The courts are better placed to decide civil disputes.

Back to top

Investigator's decision on behalf of the Ombudsman