Summary: We will not investigate Mr X’s complaint about the Council denying ownership of land on which vegetation has grown and damaged his fence. Mr X’s complaint amounts to a claim that the Council is liable for his property damage. It would be reasonable for him to make a claim to the Council’s insurer, then at court if required, to pursue the legal liability finding of property damage and redress he seeks.

The complaint

1. Mr X lives in a property with land containing overgrown vegetation on the other side of his boundary fence. He complains the Council has not agreed it owns the adjacent land and has not accepted liability for damage to his fence caused by the vegetation.
2. Mr X says the damage caused to his fence has led to his property being exposed and insecure. He wants the Council to provide him with redress for the damage to his fence and for the Council to maintain its land in future.

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The Ombudsman’s role and powers

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

4. I considered information from Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Mr X and the Council disagree about the ownership of the land on which the vegetation is growing which he says has damaged his fence. Mr X considers the land is highway, owned and to be maintained by the Council. Officers believe the land is privately owned and not Council land.
6. We cannot make determinations on land ownership. Even if we could, and even if our decision were that Mr X is correct and the Council does own the land in question, we would not investigate. This is because the core issue in his complaint amounts to a claim that the Council’s lack of maintenance of the vegetation on the land has caused damage to his fence. This is a claim by Mr X that the Council is liable for damage to his property. To get a finding on this issue, he would need to lodge an insurance claim with the Council’s insurers. The insurance route is the appropriate one for Mr X’s matter, rather than an investigation by us, because for us to form a view on his complaint, we would need to be able to decide whether the Council is responsible for his claimed property damage. This is a legal liability question we cannot answer. We cannot make findings on issues of liability for damages to property. Only insurers or the courts can make those decisions.
7. If the outcome of an insurance claim does not resolve the matter to Mr X’s satisfaction, then it would be for the courts to determine his liability claim against the Council. We recognise Mr X may not wish to go to court. But it would be reasonable for him to pursue this route if required because it is the process he would need to use to get the required finding of legal liability against the Council which is at the core of his complaint. It would also be reasonable for Mr X to take the matter to court because courts can issue legally binding orders on the parties involved, whereas we can only make remedy recommendations to councils.

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Final decision

8. We will not investigate Mr X’s complaint because it would be reasonable for him to make a claim to the Council’s insurer, then to the courts if required, to pursue the required legal liability finding of property damage and the redress he seeks.

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Investigator's decision on behalf of the Ombudsman