Decision : Closed after initial enquiries
Decision date : 13 Nov 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about the Council's failure to prevent and investigate the laying of tarmac on part of the village green. This is because the courts are better placed to decide if there has been an offence and there is not enough evidence of fault by the Council to warrant the Ombudsman investigating.
- Mr Y complains about the District Council’s failure to prevent and investigate the laying of tarmac on part of the village green.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I reviewed the details of the complaint provided by Mr Y and the complaint responses from the Council. I invited Mr Y to comment on this draft before reaching a final decision.
What I found
- Mr X, a person in Mr Y’s village, had access rights over the village green to his property. Mr X installed a tarmac driveway over the village green for the access route.
- The District Council says it was unaware of this as the County Council (CC) as highways authority had granted permission for the driveway. The District Council says the CC did not, and did not need to, consult it when granting the approval because the land has dual purpose as a village green and an unclassified (category D) highway.
- The District Council says the legislative position taken by the CC takes priority over the village green status, so it could not ask for the driveway to be removed.
- Mr Y says the laying of the hard surface is an offence in law. Together, the Inclosure Act 1857 and Commons Act 1876 to which he refers say either the churchwarden or parish overseer (now both replaced for this purpose by the parish council) or a person living in the area may complain to the magistrates’ court against the villager who installed the driveway or the body who authorised it; the CC.
- From the information provided, if Mr Y disputes the lawfulness of the driveway installation, the courts are better placed to decide if an offence has been committed and if a penalty is required. It would therefore be reasonable for Mr Y to pursue the matter through the courts.
- As any permission was not granted by the District Council, there is not enough evidence of fault in it not protecting the land as Mr Y thinks.
- The Ombudsman will not investigate this complaint. This is because the courts are better placed to decide if there has been an offence, and there is not enough evidence of fault by the Council to warrant the Ombudsman investigating.
Investigator's decision on behalf of the Ombudsman