Summary: We will not investigate this complaint about the Council’s failure to take action over a neighbour’s enclosure of highway land within his property boundary. There is insufficient evidence of any personal injustice to Mr X which would warrant an investigation.

The complaint

1. Mr X complained about the Council’s failure to take action over what he believes is an encroachment onto public highway land by is neighbour. He says the Council dismissed his complaint and also made allegations that he too may have enclosed council land if the claims he made could be verified by evidence.

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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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), section 34(B))

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How I considered this complaint

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

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My assessment

5. Mr X says that he believes his neighbour has enclosed land which was previously part of a public right of way at the rear of the properties. He reported this to the Council and asked that it instruct his neighbour to restore the original boundary and remove a structure he has built on the land.
6. The Council investigated his complaint and told him that after considering highway records, conveyance maps and Land registry it could not establish the extent of any land encroached upon relative to the boundaries when the development was constructed. The records of the development were kept by the former East Suffolk Council, the Council at the time of the development and no copy of the original highway adoption plan is available. The Council concluded that any historical changes may affect several properties and any further action based on incomplete records would not justify the expense. The Council also suggested that Mr X’s own boundary may be involved in the irregularities.
7. We will not investigate this complaint. Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
8. The Council has statutory powers to enforce provisions of the Highways Act 1980 but it does not have a duty to carry out action under these powers. It is for the Council as highway authority to decide whether taking action justifies the use of its limited funding resources.
9. There is insufficient evidence of personal injustice to Mr X to warrant an investigation. The courts have determined that it is not possible to claim possession to land that forms part of a public highway. This means that any homeowners who have enclosed highway land within their boundary would face legal complications at the point of any future sale where there is a possible dispute over the extent of a boundary within the conveyance. This would require the neighbours of Mr X and any other householders to resolve boundary anomalies with the Land Registry before a sale could progress.

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Final decision

10. We will not investigate this complaint about the Council’s failure to take action over a neighbour’s enclosure of highway land within his property boundary. There is insufficient evidence of any personal injustice to Mr X which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman