Summary:  We will not investigate Mr X’s complaint about the Council’s decision not to act when fences and signage were installed on common land. This is because there is not enough evidence of fault in the Council’s decision-making process and the courts are best placed to resolve the issue.

The complaint

1. Mr X complains about the Council’s decision not to act when fences and signage were erected on common land, which he says created an obstruction and restricted access to the land. He complains the Council decision is inconsistent with its previous use of enforcement powers on the land.
2. Also, Mr X complains the Council failed to consider the impact on Disabled people by refusing to take enforcement action. He is unhappy that it refused his request for parking to support Disabled people’s access to the land through a nearby public footpath.
3. Mr X says the ongoing denial of access to the common land has limited his use of it for recreational purposes. He says the situation has caused him uncertainty and concern about whether he can access the land without risk of confrontation.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
9. Mr X told the Council fences were built on common land in its area, as well as signage discouraging use the of the land by the public.
10. The Council considered Mr X’s reports that the common land was now inaccessible, but it decided not to pursue the issue. In explaining its decision, it said the Council had powers to take action, but this was not the same as a legal duty to act. It said this meant that it had to balance enforcement in this area against other service priorities, including those where it had a legal duty to act. It explained it did not have the resources at that time to pursue enforcement action and, instead, it had to use its limited resources to investigate higher priorities. It is for the Council to decide, based on its professional judgment, how to use its resources.
11. Further, the Council decided the situation did not trigger its equality duties towards Disabled people under the Equality Act 2010 (the Equality Act). It said the obstructions affected all members of the public equally so there was no specific disadvantage experienced by Disabled people compared with those who did not have a disability. So, its decision not to act remained unchanged.
12. Based on the above, the Council considered Mr X’s concerns and decided it would not pursue the matter further. It gave clear reasons for its decisions. Also, we cannot decide whether the Council has breached its duties under Equality Act. Only the courts can make such a decision. Based on the evidence I have seen, the Council had due regard to its duties under the Equality Act. For these reasons, there is not enough evidence of fault in the Council’s decision-making process to justify an investigation. So, we will not investigate this complaint.
13. The Council told Mr X he could take the matter to court. Section 41 of the Commons Act 2006 enables any person to make an application to the county court to rectify encroachment on common land. Because the Council has considered the matter and decided not to pursue the issue further, it is reasonable to expect Mr X to take the matter to the courts if he considers the situation unresolved. Only the courts have the power to order the restoration of the land to its previous condition. We cannot achieve this outcome through an investigation. So, the courts are best placed to consider the access issues.
14. Mr X wants the Council to provide designated parking provision for Disabled people so they can safely access a public footpath that leads to the common land. The Council told Mr X it had no power to make parking provision near the public footpath. It said that the provision of vehicle access or parking on the footpath itself was incompatible with the status of the public footpath as for pedestrian use only. Further, it is my understanding that surrounding land is private land where the Council has no power to provide parking bays. The Council suggested Mr X consider negotiating parking provision with the relevant landowners with possible support from the local Parish Council. There is not enough evidence of fault in the Council’s decision-making process. So, we will not investigate this matter.

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Final decision

15. We will not investigate Mr X’s complaint about the Council’s decision not to act when fences and signage were installed on common land. This is because there is not enough evidence of fault in the Council’s decision-making and it reasonable to expect Mr X to pursue court action to resolve the issue.

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Investigator's decision on behalf of the Ombudsman