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Portsmouth City Council (20 011 386)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 16 Mar 2021

The Ombudsman's final decision:

Summary: Ms X complains the Council failed to protect registered rights of way which benefitted her property when it sold adjacent property to a developer. We will not investigate the complaint because it is a late complaint and because Ms X has a legal remedy against the Council which we would reasonably expect her to use.

The complaint

  1. The complainant, who I refer to as Ms X, says the Council knowingly or negligently failed to protect registered rights of way which benefited her property when it sold adjacent property to a developer. She says the Council should compensate her for the many losses she has suffered over the years in fighting her case to establish her rights.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)
  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)

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How I considered this complaint

  1. In considering the complaint I reviewed the information provided by Ms X, including the review carried out by the Council’s Head of Legal Services. I gave Ms X the opportunity to comment on my draft decision.

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What I found

  1. In 2011 the Council sold its freehold interest in land adjacent to Ms X’s property to a developer.
  2. The developer built on the land which Ms X says led to a blocking of her fire escape, access and vehicle rights of way. In 2013 she complained to the Council about matters concerning its transfer and registration of the land in question and about boundary and access problems which she believes were the result of failings by the Council.
  3. Ms X continued to pursue matters with the Council over the years, seeking its assistance to establish her legal rights. However, she says it was only in 2018 that the Council’s solicitor agreed to meet with her and discuss her case.
  4. In 2020 the Council completed its review of her case. While it accepted it had delayed in addressing the matter for a number of years, and offered Ms X £500 compensation for this delay, it did not accept liability for damages and told her it had owed no duty and that the dispute was between her and her neighbours. It advised Ms X that if she rejected what it had said she could instruct her solicitors or issue proceedings which the Council would fully defend.
  5. Dissatisfied with the Council’s response, and believing the Council guilty of negligence, Ms X complained to the Ombudsman.

Assessment

  1. This has been a long-running and involved dispute, involving Ms X, neighbouring landowners and the Council, which has clearly impacted on her both professionally and personally. However, the matters about which Ms X complains occurred too long ago to be investigated by us now and so the complaint falls outside our jurisdiction.
  2. Moreover, even if the time restriction highlighted in paragraph 3 did not apply, the dispute between Ms X and the Council is essentially a legal one and as such it is for the courts and not the Ombudsman to determine. Ms X has, or had, a legal remedy against the Council which we would reasonably expect her to use and for this reason too the complaint falls outside our jurisdiction and will not be investigated.

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Final decision

  1. We will not investigate this complaint. This is because it is a late complaint and because Ms X has a legal remedy against the Council which we would reasonably expect her to make use of.

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Investigator's decision on behalf of the Ombudsman

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