Summary: The Ombudsman will not investigate this complaint about the encroachment of public land. This is because the complaint is late, and the Ombudsman is unlikely to consider that the complainant has suffered a personal and significant injustice.

The complaint

1. The complainant, who I refer to as Mr X, is making a complaint about the Council wrongly permitting the encroachment of public land by his neighbours. Mr X says the land was subject to covenants and other restrictions by the land developers which have been disregarded.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault, or the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended).
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).

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How I considered this complaint

5. I have reviewed Mr X’s complainant to the Ombudsman and had regard to his schedule of correspondence with the Council and applicable legislation. Mr X also received an opportunity to comment on a draft of this decision.

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What I found

What happened

6. Since 1998, Mr X has continuously brought to the Council’s attention issues concerning the encroachment of public land. He says he received notification from the Council confirming that encroachment had occurred and that it would be taking steps to enforce its boundary. However, Mr X’s neighbours disagreed with this decision and they were permitted to put forward their own opinion as to where they believed their boundary to be. Mr X says he has been informed by the Council that the matter is ongoing, and it is unable to advise when the matter will be concluded.

Assessment

7. The Ombudsman is not an arbitrator of land disputes, rather we act to remedy faults by councils which cause a personal and significant injustice. In assessing injustice, it is necessary that I consider whether Mr X has suffered serious loss, harm, or distress as a direct result of any fault by the Council. In my view, as the perceived encroachment is taking place on land belonging to the Council, as opposed to Mr X himself, I do not consider Mr X is suffering a personal or significant injustice in this case. I recognise Mr X says he has suffered an injustice as he is unable to walk on the encroached public land, but I do not take the view this is significant enough to warrant an investigation.
8. In any event, I cannot by law (see above) investigate a complaint made more than 12 months of Mr X becoming aware of the problem, unless there are good reasons. In assessing whether to exercise discretion, I must consider whether fault and injustice is ongoing. As determined, I do not consider there is a personal and significant injustice to Mr X in this case. Further, as the complaint is historic, I consider there may be real practical limitations on the Ombudsman’s ability to obtain the evidence needed to investigate the complaint. I recognise Mr X says the delays in complaining are a result of the Council, but my view is this matter could have been raised earlier. For these reasons, I do not propose to assess any fault or investigate.

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Final decision

9. I will not investigate this complaint because it is late and I do not consider Mr X has suffered a personal and significant injustice.

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Investigator's decision on behalf of the Ombudsman