Summary: We will not investigate Mrs X’s complaint about a dispute with the Council over the removal of a hedge. We cannot adjudicate on landownership which is a matter for the courts. We will not investigate other parts of the complaint because further investigation would not lead to a different outcome.

The complaint

1. Mrs X complained the Council did not properly consult before it carried out work on a public highway and removed an ancient hedge from her land. She said she was not given the opportunity to object to the planned works, has lost over 2ft of land from her property and has been left with inadequate fencing. She would like the Council to provide improved fencing in an appropriate location.

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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. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X complained the Council did not consult her before a hedge was removed from her property as part of a highway widening scheme. In its complaint response, the Council advised Mrs X that it could review her property deeds to help clarify the land boundary issue. It said without this documentation, it would need to rely on land records and approved plans.
8. The Ombudsman cannot adjudicate on disputed landownership as this is a matter for the courts.
9. It is for Mrs X to ask the court to decide whether the hedge in question was on her private land.
10. As it is reasonable for the Ombudsman to expect her to use this alternative remedy, and as we cannot determine landownership, this part of the complaint falls outside of our jurisdiction.
11. In its complaint response, the Council explained that consultation took place as part of the statutory planning process for a wider development. It acknowledged that direct engagement with residents could have been improved and said the Council would seek to improve consultation practices where developer highway proposals may impact private properties.
12. The Council said it did not have a budget for private accommodation works to provide improved fencing at Mrs X’s property. It also said it had offered to replant the hedgerow subject to a maintenance agreement.
13. We will not investigate this part of the complaint because further investigation would not lead to a different outcome. The Council recognised that consultation about the carriageway widening works could have been improved, and set out how it would improve future consultations.

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Final decision

14. We will not investigate Mrs X’s complaint because we cannot determine disputes about landownership which is a matter for the courts. We will not investigate other parts of the complaint because further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman