Summary: The complainant says the Council’s Silica Sand Acquisition Procedures are not compliant with lawful requirements. And the Council has failed to decide on applications to modify the definitive map. We will not investigate this complaint as the Council is reviewing the Local Plan which includes the Silica Sand Acquisition Procedures, and it is reasonable for Mr B to follow that process. And he can ask the Secretary of State to instruct the Council to decide on the definitive map modification applications.

The complaint

1. The complainant, who I shall call Mr B, says the Council’s Silica Sand Acquisition Procedures are not compliant with the lawful requirement to consider extensive and varied public interests.
2. He also complaints the Council rejected his 14 Definitive Map Modification Order (DMMO) applications.
3. Mr B says he has spent a lot of time and effort to understand the Council’s planning proposals. He wants the Council to:
• make the Silica Sand Acquisition Procedures compliant with the requirement to consider extensive public interests
• rewind the Silica Sand Acquisition Procedures back to stage two of the process; and
• consider the 14 applications for modifications to the definitive map.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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 further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A(6), as amended)

7. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

8. I considered the information provided by Mr B and the Council. I also considered the information available on the Council’s website and the provisions of the Town and Country Planning (Local Planning) (England) Regulations 2012.
9. Mr B commented on the draft version of this decision.

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What I found

The Silica Sand Acquisition Procedures (‘the procedures’).

10. The procedures are included in the Council’s review of its Minerals and Waste Local Plan (the plan). This review follows several stages:
• Initial consultation – took place in 2018
• Preferred Options Public Consultation – took place 2019
11. The remaining stages are:
• Pre-Submission publication representations period
• Submission to the Secretary of State
• Examination Hearings
• Adoption
12. The Council says it received thousands of responses to the Preferred Options Consultation in 2019 which has delayed the remaining stages of the process. This includes the Examination Hearings which are due to take place during 2021, with adoption anticipated in 2022.
13. I understand Mr B believes the procedures are not compliant with the lawful requirement to consider extensive and varied public interests.
14. As these procedures form part of the Council’s Minerals and Waste Local Plan which is under review, Mr B may request to speak at the public Examination Hearings to ensure the Planning Inspector is made aware of his concerns about the procedures.
15. The Minerals and Waste Local Plan may only be adopted by the Council if the Planning Inspector finds it sound and compliant.
16. Should the Council adopt the Plan, and Mr B remain aggrieved, he can appeal to the High Court under section 113 of the Planning and Compulsory Purchase Act 2004.
17. The Council has also confirmed that, following adoption of the Local Plan, any proposal for silica sand extraction will be subject to a planning application. Mr B can object to any such application.
18. The Council is following the statutory procedure for developing its Local Plan. The procedures Mr B is concerned about form part of the Plan. It is appropriate for him to raise his concerns, using the process set out in law.
19. It is for the Planning Inspector to decide whether the local plan is sound, whether the consultation carried out by the Council throughout the process was satisfactory and whether he has enough information to make a decision.
20. Mr X also complains the Council’s Statement of Community Involvement (SCI) is a fundamentally flawed document which may be the root of the failures in its consultations. The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions.
21. The law says a complaint must be made to the Ombudsman within 12 months of becoming aware of the matter complained about.
22. This SCI was subject to consultation prior adopted by the Council in 2013. It has been in the public domain ever since. It is far too late to complain about the content of this document now and I have seen no reason for exercising discretion on this point.

Applications to modify the definitive map

Background

23. Every County Council or Unitary Authority in England (except the inner London boroughs) has a legal obligation under the Wildlife & Countryside Act 1981 to prepare and keep up-to-date a ‘definitive map’ . This must show every right of way in an authority's area and the nature of the rights over the paths shown.
24. To record a right of way on a definitive map, it is necessary to apply for a Definitive Map Modification Order (DMMO).
25. 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 received 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 a right of way exists or is “reasonably alleged” to exist.
26. If 12 months passes without a decision, the applicant may ask the Secretary of State to direct the council to decide the application. The Secretary of State’s direction may include a deadline for the council to make a decision.
27. If a council decides not to make an order, the applicant has 28 days to appeal to the Secretary of State. On appeal, the Secretary of State will consider the evidence to decide if there is a case for making an order and, if so, direct the council to do so. The Secretary of State’s direction may include a deadline for the council to make the order.
28. If a council makes an order, further legal steps follow, which may include the Secretary of State deciding whether to confirm the order if people have objected to it. A public inquiry may be necessary, and where there are inconsistencies in the evidence, people may be asked about their use of claimed rights of way.
29. There is no statutory timetable to submit an Order or refer an Order to the Secretary of State. However, six weeks must be allowed for each statutory public consultation.

What happened

30. Mr B submitted several applications to modify the definitive map. In response to his complaint the Council admitted it is not meeting the deadline for registering applications because of:

“a large increase in the number of applications received, the level of resource in the team and difficulties in accessing documents and resources during the current pandemic.”

31. It also confirmed the “routes of the DMMO applications are available online for Norfolk County Council officers to view and therefore they are considered in decisions on planning applications and in the production of the Local Plan.”
32. As the Council has not decided on the DMMO applications within 12 months, Mr B may ask the Secretary of State to direct the council to decide the application. The Secretary of State’s direction may include a deadline.
33. The Government’s Rights of Way Circular 1/09 (Circular 1/09) says when considering whether to make a direction with a deadline, the Secretary of State:

“…will take into account any statement by the [council] setting out its priorities for bringing and keeping the definitive map up to date, the reasonableness of such priorities, any actions already taken by the [council] or expressed intentions of further action on the application in question, the circumstances of the case and any views expressed by the applicant.”

34. I do not intend to investigate this part of Mr B’s complaint as he can ask the Secretary of State to direct the Council to decide on the DMMO’s.
35. With regard to the impact of the applications on the progress of the Local Plan. The Council confirms the applications are available for officers to view when considering planning application and the Local Plan, it is unlikely further investigation will lead to a different outcome.

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Final decision

36. I will not investigate this complaint because:
• the procedures Mr B is concerned about are included in the Local Plan which is midway through a review. He can raise his concerns, including those about alleged lack of consultation and the impact of the DMMOs with the Planning Inspector. It is the role if the Planning Inspector to decide whether the Council’s consultation and plan proposals are sound. And whether he has enough information to make a decision.
• Mr B may ask the Secretary of State to direct the Council to decide on the DMMO applications
• The DMMO applications are available for officers to view when considering the Local Plan
• We cannot require the Council to revert to previous stages in the statutory procedure for reviewing the Minerals and Waste Local Plan; and
• it is too late to complain about the Sci which was adopted in 2013
  Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman