Shropshire Council (24 010 747)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 13 Nov 2024

The Ombudsman's final decision:

Summary: We will not investigate this complaint about a right of way because it is reasonable to expect him to approach the court who are better placed to consider the complaint.

The complaint

  1. Mr Y complained the Council has failed to intervene in a dispute relating to an easement over his land and have failed to deal with his complaint in a prompt manner.
  2. Mr Y says his property has been affected by the neighbouring property owner, and he feels the Council has failed to provide him with assistance, causing him and his family significant worry and upset.

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The Ombudsman’s role and powers

  1. 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)
  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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
  3. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

  1. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

  1. Mr Y complained about the landowner next door to him with whom he had a dispute over a potential easement over Mr Y’s land. He sought help from the Council to resolve the dispute. After Mr Y wrote to the Council in March 2023, the Council explained that as the dispute was a private matter relating to a private right of way, it was unable to help him and told him to seek legal advice.
  2. In March 2023, after the neighbouring landowner had sought planning permission to build a number of properties on the land, Mr Y wrote to the Council to object to the application. The Council subsequently, refused the planning permission. The neighbour appealed to the Planning Inspectorate (PI). The PI later granted the application for planning permission. Mr Y believes that the development will be unsafe due to various safety concerns he has raised with the Council.

Analysis

  1. Mr Y is in dispute with the owner of the land neighbouring his about whether or not an easement runs in favour of the neighbour running over his land. This is a legal issue over what rights and responsibilities, if any, are held over the land. This is not something which the Ombudsman can decide. However, the courts can. Consequently, the courts are better placed to consider the complaint than us and we will not investigate.
  2. While Mr Y may be reluctant to go to court over the matter, this does not mean that it is unreasonable for us, as a publicly funded service, to expect him to use his rights to approach the court. In this case, Mr Y can use the court system to seek a determination of whether an easement does run over his land, the extent of which it lies and in whose favour it allows access.
  3. The court can make reasonable adjustments if this is necessary for Mr Y to access its service. While there might be some cost to court action, that does not mean it is unreasonable to take court action and it may be that this can be recouped as part of the legal action Mr Y may wish to take. Consequently, as it is reasonable to expect Mr Y to approach the court, we will not investigate.
  4. As we are not able to investigate the substantive matter, it is not a good use of public funds to investigate the complaint. We will not investigate this.

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Final decision

  1. We will not investigate Mr Y’s complaint because it is reasonable to expect him to approach the court who are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman

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