Summary: Mr F complains about the way the Council has managed a public right of way behind his home. There was fault by the Council which has caused Mr F time and trouble and meant he was unable to use the path for at least two years. The Council has agreed to make a symbolic payment to Mr F and take action to clarify the legal status of the path.

The complaint

1. Mr F complains the Council:
• has failed to provide him with a key to access a path, which is a public right of way;
• initially agreed it was a public right of way but then changed its position to say it was ‘orphan land’;
• if the designation of the path has changed, this was done without consultation;
• has failed to clear the blockage of a public right of way;
• delayed in responding to him on the matter.
2. As a result he cannot use the path, cannot maintain his boundary fence and has been caused time and trouble.

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The Ombudsman’s role and powers

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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I considered the information Mr F sent and the Council’s response to my enquiries.
8. Mr F could have asked the court to order the Council to clear the obstruction. He also could have appealed to the planning inspector about any modifications made to the rights of way definitive map. As set out in paragraphs 4 and 5, we cannot normally investigate a complaint when someone can go to court or appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to do this.
9. Given the lack of clarity about whether the footpath was on the definitive map, and whether the Council had made a definitive map modification order which could be opposed, I do not consider it would have been reasonable for Mr F to take the matter to court or appeal to the planning inspectorate. I have therefore exercised discretion to investigate.
10. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Public rights of way and obstructions

11. Councils must prepare and keep up-to-date definitive maps and statements to show public rights of way (PROW) in their area such as public footpaths and bridleways.
12. The Highways Act 1980 gives councils a duty to ensure the public can use the rights of way network within the area it covers. Councils should ensure that any obstructions it identifies, or that are reported to it, are removed as soon as is reasonably practicable.
13. Government guidance, Public rights of way: local highway authority responsibilities, says if someone reports an obstruction and requests that it is removed, councils must:
• respond to all requests within one month to confirm receipt.
• contact the person who complained to tell them what action they are taking.
• make sure the obstruction is removed, either by the local authority or the person responsible for it.
14. Where the council identifies an obstruction, a statutory time frame may have to be employed to allow for its removal before formal enforcement action can be taken. This can vary between 24 hours and 28 days depending upon the type of obstruction. The council should begin by asking the landowner to clear the obstruction. The penalty for non-compliance could include removal of the obstruction, with reasonable costs being recovered from the offender. If the landowner fails to comply the council can start court proceedings to force the owner to comply.
15. If the obstruction is not removed within two months of the council writing to the person who complained, the complainant has the right to serve a notice on the council requiring it to clear an obstruction (Highways Act 1980, section 130 A to D). If it fails to do so, the complainant can then ask the Magistrates Court to order it to do so.

The definitive map and modifications

16. Public rights of way must be shown on a definitive map which is maintained by the council. A member of the public may apply to the council for a definitive map modification order (DMMO) if they believe (and have supporting evidence) that a right of way is shown on the wrong place on the map or if an existing path should be on the map if it is not.
17. Councils must then decide whether to change the map by making an order. The council must publicise the order and if there are no objections from the public, it is confirmed and the right of way is added. If it is opposed the council must submit the proposed order to the Planning Inspectorate for a decision.
18. If a council decides not to make an order, or if 12 months passes without a decision, the applicant may ask the Secretary of State to direct the council to decide the application. The Planning Inspectorate acts for Secretary of State with respect to the determination of DMMOs by local authorities.

Gating orders and public space protection orders

19. From April 2006, local authorities were granted new powers under section 129A to 129G of the Highways Act 1980 to make 'gating orders' to help deal with anti-social behaviour. The Council may make a gating order to restrict the use by the public of a 'relevant highway' for which it is the Highway Authority and may authorise the placing of gates at each end or at any point on the highway.
20. The Highways Act 1980 (Gating Orders) (England) Regulations 2006 say the order must contain the dates and times that the public right of way along the relevant highway will be restricted and details of any persons who are excluded from the effects of the restriction.
21. Public Spaces Protection Orders (PSPOs) were introduced in October 2014 as part of the Anti-Social Behaviour, Crime and Policing Act 2014. PSPOs allow local authorities to place restrictions and requirements on certain behaviours in an area. Failure to comply with a PSPO without a reasonable excuse is a criminal offence and could result in a Fixed Penalty Notice of up to £100, or a fine of up to £1,000 if prosecuted.
22. PSPOs replaced powers to make Gating Orders. Any Gating Orders that were already in place automatically became PSPOs from 20 October 2017. The transitioned PSPO then remained in force up to a maximum of three years from the point of transition.
23. There was no requirement in the legislation for councils to undertake a new consultation process where existing Gating Orders automatically transitioned, although councils were encouraged to review them and publicise any PSPOs that replaced existing Gating Orders. The Council’s website says all existing gating orders became PSPOs in October 2017.
24. PSPOs can last for up to three years. They then have to be re-made for another three years. Councils must carry out the necessary consultation and publication of the proposed Order to extend or re-make a transitioned PSPO.

Complaint handling

25. The Council’s formal complaint procedure is two stages. The Council aims to respond to complaints within 21 calendar days at stage one and 28 calendar days at stage two.

What happened

26. Mr F’s home backs on to a road which is not part of the public highway. The land immediately behind Mr F’s back garden is owned by the rear neighbour (Mr B). There is a footpath which runs along the boundary of Mr F’s back garden, some of the footpath is on land owned by Mr B. This footpath is shown on the definitive map as a public right of way.
27. In 2008 a Gating Order was put in place and part of the public right of way was restricted through the installation of gates. The 2008 Gating Order says access will be permitted by giving keys to highway maintenance contractors, emergency services and public utilities. There is no reference to residents getting keys. However, in 2010 when the gates were installed, there is no dispute that Mr F was given a key.
28. The Gating Order was in place until October 2017 when, under the transitional arrangements, it automatically converted to a PSPO.
29. In around 2019, Mr F installed roller shutter doors in a building in his garden and removed the fence between his garden and Mr B’s land to enable access to the new garage. Mr F considered he had a right of access over Mr B’s land as this was referred to in the planning permission granted for the development which Mr B’s house is on. Land ownership and rights of access over private land are not material planning considerations and fall outside the planning process. This matter is a private legal dispute between Mr F and Mr B. The Council is not involved.
30. In September 2020 Mr F contacted the Council. He said Mr B had blocked off the public footpath behind his home by screwing a gate shut. The Council acknowledged receipt of this on 21 September 2020. I have seen no records of any further action by the Council until January 2022.
31. In October 2020 the PSPO applying to the footpath expired but the Council says it did not re-make it.
32. Mr F again contacted the Council on 4 October 2021. He asked for a key to the gate and what action the Council was taking about the obstruction to the right of way.
33. The Council wrote to Mr B in January 2022 asking him to remove the obstruction. There was some correspondence between Mr B and the Council, resulting in the Council visiting the site on 18 May 2022 to assess the obstruction and whether Mr B’s fencing had to be removed. It is unclear whether the obstruction was then removed by Mr B unscrewing the gate.
34. I have seen no evidence of any further action by the Council until after Mr F came to the Ombudsman in July 2023.
35. In the meantime, Mr F continued to chase the Council for a response to his report of an obstruction. I have seen that he contacted the Council numerous times between October 2021 and March 2023. The Council replied each time to say that he would be responded to soon.
36. Mr F made a formal complaint on 15 March 2023 about the Council’s delay in responding to him. He again asked for a key to the gate.
37. The Council responded on 23 March 2023. It said the path was on “orphan land” (i.e. where the owner is unknown) and therefore it was residents’ responsibility to keep the path clear and was not a matter the Council could assist with. In response to my enquiries the Council accepted this response was wrong and was based on the incorrect assumption that the footpath was on orphan land and was not a public right of way.
38. Mr F came to the Ombudsman. After we contacted the Council, it again visited the site. It told me that in November 2023, a further inspection had identified areas of obstructive vegetation. The Council would arrange for the right of way to be cleared and reinstated. Keys had been provided to affected residents, to allow them to carry out boundary line maintenance, and the control of overhanging or obstructive vegetation.

My findings

39. There was delay and drift by the Council in dealing with Mr F’s report of an obstruction of a public right of way from September 2020 to January 2022. This is fault.
40. The Council wrote to Mr B in January 2022, but there was then further drift and confusion from May 2022 to November 2023. It is unclear whether the initial obstruction reported had been cleared. But even if it had, Mr F was continuing to chase the Council without a substantive response. This is fault. The Council has also accepted that its complaint response of March 2023 was incorrect.
41. When Mr F initially contacted the Council in September 2020, part of the footpath was not a public right of way subject to a gating order but was a path with access restricted by a PSPO. The PSPO then expired and was not re-made. The footpath therefore reverted to a public right of way on 17 October 2020 as the gating order had been replaced and the PSPO had expired.
42. The Council maintains gates on this footpath, this is fault. The Council needs to make a new PSPO to give it a legal basis to have locked gates installed on a public right of way.
43. The fault has caused time and trouble and frustration to Mr F. He has also been unable to use the path and access his rear boundary fence for at least two years. This is injustice.
44. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says a moderate, symbolic payment may be appropriate to remedy time and trouble.

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Agreed action

45. Within a month of my final decision, the Council has agreed to apologise to Mr F and pay him £300 to remedy the injustice caused.

46. Within three months of my final decision, the Council has agreed to:
1. Take steps to introduce a PSPO in relation to the footpath if the locked gates are to remain in place.
2. Review the other PSPOs which replaced previous gating orders and expired in October 2020 to determine if they need to be re-made.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman