Summary: We will not investigate this complaint about the Council’s decision not to take action in relation to Mrs X’s neighbour’s fence. There is insufficient evidence of fault by the Council.

The complaint

1. Mrs X complained about how the Council handled her concerns about her neighbour’s fence. She said the fence had been erected on a public footpath. Her complaints included the Council:
• failed to properly investigate the matter, refusing to consider her evidence or carry out a site visit;
• failed to respond to her attempts to contact the inspector; and
• changed its view despite communicating verbally that it agreed the fence encroached on the public footpath.
2. Mrs X said her neighbour’s fence made it difficult to manoeuvre her vehicle in and out of her driveway, and caused a risk due to pedestrians needing to walk on the road. Mrs X said the matter had caused her significant distress. She wanted the Council to acknowledge the land in question is a public footpath as shown on her deeds, take action against the neighbour requiring them to remove part of their fence, and put right the pavement.

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The Ombudsman’s role and powers

3. 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 not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X complains about her neighbour’s fence, which she says has encroached on a public footpath and obstructs her vehicle access to her driveway.
7. The Council carried out a site visit and considered its own records of the highway boundary in relation to Mrs X’s and her neighbour’s properties. It considered the title plans for both properties, as well as evidence from Mrs X including CCTV footage and comments from other bodies. It explained why it did not require other evidence Mrs X offered.
8. The Council telephoned Mrs X to explain it would not take action against her neighbour as the fence was not on the publicly maintainable highway. It has apologised as part of its complaints process for not also having confirmed this decision in writing at the time.
9. We are not an appeal body and we have no power to determine where land boundaries lie. We instead consider whether there was any fault in how the Council considered the matter and came to a decision. Mrs X disagrees with the Council’s position about where the boundary of the highway lies. This does not, in itself, mean the Council is at fault. There is insufficient evidence of fault by the Council in how it considered where the boundary of its highway lies, and it has clearly explained it is satisfied the neighbour’s fence is not on its footpath.
10. Mrs X says the officer who visited gave verbal assurances the Council would take action against her neighbour. The officer denied this was the case. We could not come to any sound findings about the content of verbal conversations.
11. The Council accepted via its internal complaints process that it had not returned a telephone call from Mrs X. The Council apologised to Mrs X. Further investigation by us would not lead to a different outcome.
12. The Council decided the neighbour’s fence was not on the public footpath, and that the matter is therefore a private one between Mrs X and her neighbour. It is open to Mrs X to consider her options for action against her neighbour for obstructing her property access. This may include submitting evidence to HM Land Registry to establish the easement or applying to the courts for an injunction. It is open to Mrs X to seek legal advice.

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Final decision

13. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman