Delay in Council replying to complainant’s correspondence relating to the matter—unclear whether undertaking had been made—on balance probable
A complaint was received that a Council had failed to act on a promise, allegedly made on its behalf by a Council employee, to provide fencing material to replace a fence removed during Council road works. There was also a related complaint alleging delay in replying to correspondence regarding the matter.
The second complaint was not sustained as it was discovered that there was no technical delay on behalf of the Council. The Council had replied to the complainant’s initial letter informing him that the matter was to be referred to the next Council meeting. The matter was then discussed at the meeting, and the Council decided that a report should be prepared and referred back to the Council. The Council had however, been remiss in failing to inform the complainant of their decision.
The investigation of the first complaint was complicated by disjointed and sometimes conflicting accounts of what took place. A large area of land had been sold to the Forestry Service by the complainant’s father in the mid-1970s. The Forestry Service had subsequently leased this land out for grazing purposes. There was however a misunderstanding about a block of land which the Forestry Service and the local Council believed was sold with the original block. It was later determined that it was in fact still owned by the complainant. During the road widening the fence on this block of land was removed. The complainant claimed that he had been asked to remove the fence by a Council employee and promised materials to replace it.
There were several disputed facts. Firstly, that the original fence existed at all. Secondly, that a Council employee had asked the complainant to remove the fence or that the fence needed to be removed for the roadworks. Thirdly, that it was Council policy to replace fences that had been removed as a result of road works and finally that the Council had promised to provide materials to replace the fence.
After various enquiries, discussion and correspondence the Ombudsman determined that a fence did exist albeit old and in need of regular maintenance, but, nonetheless adequate for its purpose of confining stock.
The second fact was more difficult to determine. The complainant asserted that he had been requested to remove the fence by a Council employee. The Council employee had no recollection of the matter. The Council asserted that they would not have requested the complainant to remove the fence, as when the road works were being undertaken they believed the Forestry Service owned the land. The Council also contended that the road works took place within the existing fence line and the fence would therefore not need to be removed. The Ombudsman’s investigating officer conducted a field study and the Ombudsman determined that part of the fence would have needed to be removed for the road works, as it would have presented a problem for contractors. It did not appear to have been necessary however to remove the entire fence and the Ombudsman could not ascertain with certainty that the Council employee had requested that it be removed.
There were also conflicting views about whether it was Council policy to replace fencing that had been removed for road works. One Council employee asserted that it was not, however, another employee stated that he had ‘definitely’ told the complainant that it was Council policy. From other evidence and statements it appeared that it had been the usual Council practice at the time, in similar circumstances. But in this situation the Council believed the Forestry Service owned the land, and an agreement had been reached between the Forestry Service and Council whereby the Council would not replace the fencing because of its age. There was however no written evidence to confirm this agreement.
The final fact in dispute concerned the original promise to supply the materials. The Council employee present at the time could not remember making such a promise. He had also informed his successor that the Council should not be responsible for replacing the fence. This belief however was based mainly on his mistaken understanding that the Forestry Service owned the land in question at the time.
The areas of contention were further confused by the lack of written evidence to substantiate the Council’s claims, as a large number of documents had been destroyed in a fire. There had also been a considerable staff turnover adding to the difficulties in ascertaining the facts.
On the available facts and on the basis of discussion and correspondence with various individuals and the field evidence of the investigating officer, the Ombudsman determined that a fence did exist; that part of it would have needed to be removed for the road works; that it appeared it had been the Council policy to replace fences in situations where they had been removed for road works. The Ombudsman could not determine with any certainty that the complainant had been promised materials for the new fence by the Council but the surrounding circumstances led him to conclude that it was probable. As the fence was old and the complainant could not prove that he was asked to remove the entire fence or that it was necessary to do so, the Ombudsman determined that compensation should be apportioned at the equivalent value of one-quarter of the cost of the erection of a new fence. Following further correspondence and discussion with the Council, the Council agreed to discuss the matter with the complainant and the parties then accepted the recommendation of a 25 percent apportionment.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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