Summary: We will not investigate this complaint about a right of way. This is because the courts are better placed to consider the complaint.

The complaint

1. Mrs Y complains the Council has blocked her right of way from her back garden, directly onto the park behind her property.
2. Mrs Y says she is prevented from using her established right of way and has been upset and distressed about the matter. She says she has had to instruct solicitors at a cost so far of £4,000 to try to resolve the matter.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I considered information Mrs Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

5. Mrs Y has lived in her property for nearly 40 years. She says she has had a gate in the fence in her garden over this time and has used it for direct access to the local park. In 2020, Mrs Y had her existed fence and gate replaced. The Council then blocked the new gate, preventing Mrs Y from accessing the local park through her garden.
6. Mrs Y complained to the Council in August 2020. The Council responded, also in August, explaining that while Mrs Y had a right to put a gate in her fence line, she did not have the right to use the gate to enter park land, which the Council considered to be encroachment. It said it had put up the barrier to prevent this encroachment and was taking this action where it had become aware of new gates being installed. It said after initial talks with Mrs Y’s solicitors, it had decided to remove the barrier and would only reinstate a barrier if it had first given 28 days notice unless urgent works were required where this was not possible.
7. Mrs Y then contacted us in January 2022. We wrote to the Council and asked it to provide Mrs Y with its final response. It replied to Mrs Y in February. It said its original response had not changed but that it was aware that a path had been cleared and used which it considered as potential criminal damage. It said that the council was now engaged in a legal dispute with Mrs Y but agreed not to reinstate the barrier until the outcome of any legal action. It also referred Mrs Y back to us.

Analysis

8. In this complaint there is a dispute over whether a right of way has been established and whether Mrs Y has caused criminal damage to the vegetation behind her home and encroached onto the park land. We cannot decide whether there is a right of way or not, or decide any of the other legal issues int his complaint. This would be the role of the courts. Consequently, as the court can decide on such disputes, the court is better placed to consider this complaint. Therefore, we will not investigate.

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Final decision

9. We will not investigate Mr Y’s complaint because the courts are better placed to consider this complaint.

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Investigator's decision on behalf of the Ombudsman