Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mr Y to go to court about the matter, who are better placed.

The complaint

1. Mr Y complained the Council wrongly dug a trench relating to highway maintenance on his land and potentially damaging a wall on his land without permission or prior notice. He says he is also unhappy with how the Council responded to his complaint, in which he felt he was not given a proper answer to many of his questions and failed to consider appropriate compensation.
2. Mr Y says his land was damaged in the process of the works, planting removed which provided him with privacy, made him feel dismissed and caused him upset and inconvenience.

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The Ombudsman’s role and powers

3. 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)
4. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y complained to the Council as he believed it had completed work on his land, causing damage. The Council has denied this, saying that work was completed within the limits of the highway, but it has reinstated the soil, which had been removed to create a trench. Mr Y has asked the Council for compensation because of damage to his property and privacy, which the Council has denied. Mr Y therefore approached us.
8. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or land claims. We cannot determine land ownership disputes or liability claims for negligence. These are legal claims which may only be determined by the courts.
9. Consequently, any claim for damages, such as costs for repairs to his wall or planting, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. The court is also better placed to consider any land ownership or trespass issues. It is therefore reasonable for Mr Y to pursue any claim through either his home insurer or the courts. We will not investigate this complaint.
10. As we are not investigating the substantive issue, it is not a good use of public funds to investigate how the Council dealt with or responded to the complaint. Consequently, we will not investigate the complaint.

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Final decision

11. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to go to court about the matter, who are better placed.

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Investigator's decision on behalf of the Ombudsman