Summary: Mr T complains about the Council’s actions relating to an unrecognised footpath, which no longer exists due to a new housing development. He says the closure of the route has had a negative impact on his life and caused him distress. We do not find fault in the actions of the Council. As the route was unrecognised, there was no formal process required to close it, and the Council has provided the correct information to Mr T about how he could apply for recognition of the route.

The complaint

1. Mr T’s complaint concerns a footpath that runs close to his home. There are several parts to his complaint.
2. First, he says the Council failed to properly process and consider a planning application in 2016 that has led to the removal of an ancient footpath. He says this included the Council;
1. Changing the original master plan without public notification.
2. Failing to notify Mr T and other objectors about a public enquiry for the diversion of a separate recognised footpath.
3. Distributing plans to local residents at the planning stage that showed the ancient footpath would remain in place.
4. Ignoring Mr T’s email in 2017 about the importance of the local footpath and claimed there was no evidence of the route having been used.
5. Failing to follow guidance set out in the National Planning Policy Framework and the Town and Country Planning Act by not carrying out adequate historic research, not considering the impact that closing the ancient route would have on existing residents, not considering the impact on wildlife and ancient hedges and failed to consider the impact on traffic and the economy when deciding the application.
6. Making an amendment to the planning application to cover up the fact a hedge had been removed illegally.
7. Not adhering to guidance issues by the Department for Environment, Food and Rural Affairs when re-routing footpaths through housing estates.
8. Not considering Common Law or Section 31 Highways Act 1980 in the decision which allowed the ancient route to be closed.

3. Second, Mr T says the Council told him he would not need to make a Definitive Map Modification Order (DMMO) to recognise an ancient route when he enquired in 2017. Mr T says he was then told by the Council in 2020 that there was no chance of creating a DMMO for the route, before being told by the Council that he should apply for one in 2021. Mr T also says the Council refused to make or fund a DMMO application on behalf of residents and should have used funds from the levy paid by the Developer to do so.
4. Mr T also complains the Council failed to take action to prevent access to the ancient route being fenced off by the developer in 2020.
5. The next part of Mr T’s complaint is that the Council failed to create a full footpath around the northern boundary of the development, which had been agreed with the Council’s legal team and Mr T.
6. Finally, Mr T says the Council sent drawings and maps to him in 2017 that resulted in him dropping an objection to the diversion of a recognised footpath. He says the maps later turned out to be incorrect and misleading, which the Council said had been a mistake in 2021.
7. Mr T says he has suffered the following injustice because of the Council’s actions:
1. He has had to spend many hours complaining to the Council about its failure to follow planning laws, regulations and guidance since 2016. He says this has impacted on his relationship with his wife and daughter.
2. The only safe, direct, green route to walk his daughter to school has been removed. Alternative routes are heavy trafficked and involved crossing busy roads.
3. He is no longer able to walk to the local shops due to the increased pollution and feels it is healthier to travel by car.
4. He no longer has a safe green passage to his parents’ house to drop his daughter off, so now has to go by car.
5. He will have to change his GP surgery as he is no longer able to walk to the existing one and will need to find one with better vehicle access.
6. He is unable to link up to other parts of the public right of way network.
7. He has been caused great distress when he passes the development and realises the injustice and how the area has been changed.

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What I have investigated

8. I have investigated the complaints listed at paragraphs 3, 4 and 5 only. The reasons for not investigating the complaints listed in paragraphs 2 and 6 are explained later in this statement.

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The Ombudsman’s role and powers

9. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
10. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
11. 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)
12. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
13. If we are satisfied with a council’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

14. I read Mr T’s complaint and the Council’s responses. I confirmed details of the complaint with Mr T and spoke to him on the telephone.
15. I invited Mr T and the Council to comment on a draft decision and considered any comments made in response.

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What I found

16. To record a right of way on a definitive map, it is necessary to apply for a Definitive Map Modification Order (DMMO).
17. The law sets out how people may apply to their council for a DMMO to have a public right of way recorded on the definitive map. Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order. A decision to make an order needs evidence that a right of way exists or is reasonably alleged to exist.
18. Mr T said that for many years he and other members of his local community were regular users of an ancient route which does not have any formal recognised status as a footpath or right of way. He said a new housing development has removed the route.
19. Mr T said the Council told him in 2017 that he would not need to make a DMMO application for the route.
20. He supplied an email to the Ombudsman of a conversation between himself and the Council from February 2017. In the email, the discussion is about footways the Developer is going to install as part of the development. Mr T said he intended to apply for a DMMO in the future to have the Developers’ paths upgraded to footpath status. The Council said the footways being created by the developer will be adopted and recorded on the register of streets, so there will be no need to record them by any other means.
21. Mr T said that in 2020, the Council said there would be no chance of creating a DMMO for the route used by Mr T. He said a councillor had asked the question on his behalf after he had not received a response from the Council. Mr T provided a copy of an email he has obtained between the Council and several councillors.
22. In the email, the Council said that residents can potentially apply to the Secretary of State for the informal route to be designated as a formal right of way, but this is unlikely to be successful. The Council also said a DMMO application would be unlikely to lead to the outcome some residents may hope for. It said this was because the Inspector who held the Public Inquiry for the diversion of a recognised footpath already considered the adequacy of rights of way in the surrounding area.
23. Mr T said that in 2021, the Council verbally advised a councillor in a closed meeting that the best option to open the route in question back up was to make a DMMO application. He said he was reluctant to do this as the council officers advising the planning committee to decide on the DMMO would be the same officers who previously said it would be unlikely to be successful.
24. Mr T said that during a site visit to the area where the ancient route is situated, a council officer told him that using levy funds paid by the developer to make a DMMO application was not possible. Mr T said he told the officer he had evidence of other local authorities having used the levy for such an application, but the officer said it had been checked with the planning department and it was not possible.

Access to the route

25. Mr T said the Council failed to prevent the Developer from putting up a fence in 2020 which blocked access to the ancient route.
26. In response to Mr T’s complaint, the Council said the route has no formal status and therefore no formal process was required for the fencing to be installed.
27. In response to an earlier draft decision, Mr T said the route was included on the Developers’ original plans as being an existing footpath and because of that it should not be able to be closed.

Failing to create a full footpath

28. Mr T said he had agreed with the Council’s legal team that there would be a full footpath around the northern boundary of the housing development. He said the footpath has still not been fully completed.
29. In response to Mr T’s complaint, the Council said a new footpath will be located along the northern boundary of the development and sent Mr T a plan of the intended path.
30. In response to the draft decision, Mr T said the Council does not intend to put a footpath across the whole of the northern boundary.

Analysis

Definitive Map Modification Order

31. The correspondence between Mr T and the Council from 2017 is too far in the past to be able to investigate thoroughly. However, it appears the discussion about any DMMO application in that exchange was relating to footpaths that would be created by the Developer, as opposed to pre-existing informal routes.
32. In response to the draft decision, Mr T said some paths built by the developer were not to be adopted and they are the paths he was referring to in the email referenced in the previous paragraph. However, specific reference to different paths is not present in the email.
33. The communication between the Council and several councillors in 2020 does not prevent Mr T or any other residents from applying for a DMMO but provides a view on the situation to the councillors.
34. The additional discussion referred to in 2021 was an unrecorded verbal conversation that Mr T was not present at and therefore no specific record of conversation has been provided. Even if the advice was the best course of action was to make a DMMO application, this did not contradict the earlier message to councillors in 2020. The best course of action to achieve something does not mean it will be successful.
35. Mr T’s view is that the Council could use the levy paid by the developer to pay for a DMMO application, but it is not willing to do it. This is a decision the Council is entitled to take and there is no obligation for it to use the levy in these circumstances.
36. Having considered the above points, I do not find fault by the Council in how it has corresponded about any potential DMMO application.

Access to the route

37. As the route has no formal status, no formal process was required to block access to the route.
38. Even if the route was included in the original plans completed by the Developer, that would not give it formal status as a public right of way.
39. I do not find fault by the Council with regards this part of the complaint, as it did not have to take any action in the circumstances.

Failing to create a full footpath

40. The Council’s response to Mr T’s complaint is that a footpath will be located along the northern boundary. The fact it has not yet been installed at the time of this complaint is not fault by the Council.
41. If the footpath is not completed as approved by the Council, Mr T can make a further complaint to the Council.

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Final decision

42. I close this case without a finding of fault against the Council for the reasons specified in this statement.

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Parts of the complaint that I did not investigate

43. I did not investigate the parts of the complaint detailed in paragraph 2 earlier in this decision statement. These are late complaints to the Ombudsman and there are no good reasons to exercise discretion to consider them now. With a considerable amount of time having passed since the events, it is unlikely the Ombudsman could conduct a full investigation into the complaints.
44. Some of the elements contained in paragraph 2 have also been considered by the Planning Inspector. In those circumstances even if the complaint was made in time, we would not consider it.
45. I also did not investigate the complaint detailed in paragraph 6 of this decision statement. The substantive element of the complaint occurred back in 2017 and is historic. In the email provided to the Ombudsman by Mr T dated February 2017 and referred to in paragraph 20 earlier in this statement, Mr T said that he would be happy to withdraw his objection following confirmation from the Council that a path will be put in place around the northern boundary of the housing development.
46. The information I have seen suggests Mr T dropped his objection because he was able to get confirmation a new path would be installed, which has been considered earlier in this statement. There is not enough evidence of fault by the Council to warrant further investigation into this part of the complaint.

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Investigator's decision on behalf of the Ombudsman