Summary: The Ombudsman found Mr H’s complaint about the way the Council responded to his report of a neighbour blocking a footpath running between their houses along the side of his garden hedge is not within his jurisdiction. This is because he took too long to complain to the Ombudsman about it.

The complaint

1. Mr H complains about the way the Council responded to his report of a neighbour blocking a footpath running between their houses along the side of his garden hedge; as a result, he believes its actions worsened the boundary dispute causing him a great deal of stress and inconvenience.

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The Ombudsman’s role and powers

2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
3. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I considered all the information Mr H sent, and the notes I made of our telephone conversation. I sent a copy of my draft decision to Mr H and the Council. I considered their responses.

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What I found

6. In 2016, Mr H applied to the Council to vary existing planning consent for a side and rear extension to his property. The location plan shows a footpath running down about two thirds of his garden on the other side of his boundary hedge. Solicitors acting on behalf of a neighbour wrote to him, warning his extension would encroach on the neighbour’s land. It told him he had no right to remove the dividing hedge as it belonged to the neighbour.
7. Mr H replied disputing the neighbour’s claim about ownership. He referred to the path which he used to gain access to cut the rear of his hedge. Mr H argued the path belongs to the Council. He asserted the neighbour tried to acquire it without buying it. Mr H noted the neighbour removed his own hedge which bordered the other side of the path and was now using Mr H’s hedge, as he blocked access to the path, as his new boundary. Mr H also reported the neighbour’s actions to the Council, asking whether it would take enforcement action to reclaim the footpath. The Council replied saying it wrote to the neighbour saying he must not install a boundary on this land.
8. Although Mr H did not know until 2 years later, he said the neighbour successfully applied to HM Land Registry for title to the footpath based on adverse possession. An application for adverse possession (possessory title) is a claim for ownership of land due to its occupation for a certain period. HM Land Registry decides these claims. It serves notice of the application on the registered owner and anyone else with an interest in it, such as a mortgage company with a registered charge against it, for example. Mr H said the neighbour had possessory title of the strip of land from July. I have not seen evidence showing this.
9. In June 2017, the Council wrote to Mr H who had contacted it again about the footpath. The Council confirmed it owned the footpath. It also confirmed the footpath ran to land to the rear of Mr H’s property. The Council sold this area of land to 2 other neighbouring properties. The Public Rights of Way Officer confirmed the cul-de-sac footpath served several properties but was not a public right of way. While confirming the neighbour encroached on the Council owned footpath, it decided to take no further action.
10. In June 2018, the Council sent Mr H its response to his complaint. This confirmed it had no legal obligation to enforce the route of the footpath. Nor did it see any benefit by taking enforcement action, and the cost this would involve to council taxpayers, to protect its ownership.
11. In October, Mr H saw an email from a Council surveyor to his neighbour which the neighbour had sent to HMLR in support of his claim for adverse possession. This told the neighbour:

• Mr H had no right of access over the footpath;
• Mr H had to fence and maintain his boundaries, but this did not include the hedge which was the responsibility of other neighbours;
• The gate blocking the path was in place since 1999; and
• The Council did not object to his claim for possessory title.

Analysis

12. I make the following findings on this complaint:
1. Mr H was aware in 2017 of the Council’s decision not to take enforcement action against the neighbour. This is the date he became aware of the matter he now complains about. This means this is a late complaint. As such, the Ombudsman has no jurisdiction to investigate it.
2. The Council’s June 2018 complaint response confirmed its earlier position. While Mr H argued this was not a late complaint, because he pursued the Council’s complaints procedure which did not end until June, I am not convinced by his argument. He referred to information on our website which said a complainant had to complete the Council’s complaints procedure before making a complaint to the Ombudsman. This is correct but it goes on to say this must be completed within a ‘reasonable time’, which is usually 12 weeks. Mr H complained to us in February 2019, 8 months after the complaint process had ended and 20 months after first becoming aware of the matter he was unhappy about. I see nothing to persuade me to exercise discretion to investigate this complaint now and took account of the points he made about his health and circumstances.
13. I also considered Mr H’s claim the email the Council surveyor sent in October 2018 meant his complaint was not in fact ‘late’. I am not persuaded by this because:
1. It did not change the Council’s previously stated position about this footpath. It would not take action to recover the land and stop the neighbour using it, which is what Mr H wanted it to do; and
2. While it referred to not objecting to any claim for adverse possession, this only confirmed its underlying position of not spending money defending ownership of this strip of land.
14. I also considered any complaint Mr H may have about the surveyor’s email itself. I am not satisfied this would be worthwhile pursuing as Mr H would suffer no significant injustice even if its contents amounted to fault. This is because:
1. The points made by the surveyor were not conclusive declarations about Mr H’s legal position about the ownership of the hedges and boundaries.
2. Any claim for adverse possession would be made by the neighbour against the Council, not Mr H. The decision to grant possessory title was for HM Land Registry to make.
3. If Mr H considers he has a right to maintain his hedge from his neighbour’s property, he needs to obtain legal advice. This is because whether he has the right, and whether this is then blocked by the neighbour, is ultimately for the courts to decide, not the Council. This is a private civil matter between him and his neighbour.
4. If the neighbour is claiming ownership of Mr H’s hedge, this is also a matter on which he needs to take legal advice. Again, this is a private civil matter between him and his neighbour.
5. The correspondence from the neighbour’s solicitor in 2016 clearly shows there was an existing boundary dispute between Mr H and the neighbour about the hedge. I fail to see how the contents of this email, or the actions of the Council, affected that dispute.

Final decision

15. The Ombudsman found Mr H’s complaint against the Council is not within his jurisdiction.

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Investigator's decision on behalf of the Ombudsman