Summary: Mr X complained about how the Council granted planning permission for a new housing development which would obstruct a public right of way. He said the Council allowed the developer to begin building before it had applied to extinguish a right of way. There was no fault in how the Council made its decision on the developer’s application for an extinguishment order. The order received objections so it will now be decided by the Secretary of State.

The complaint

1. Mr X complains about how the Council granted planning permission for a new housing development. Mr X said the new development would obstruct a public right of way (PROW). Mr X says the Council:
• failed to consult the Open Spaces Society (OSS) before it made its decision;
• granted planning permission without properly considering the objection from the PROW team;
• allowed the development work to begin before a footpath extinguishment order was granted.
2. Mr X says the decision to approve the application and allow the development work to begin, is to the detriment of the local PROW network and the people who use the footpath.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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)
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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. The Planning Inspector acts on behalf of 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))

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How I considered this complaint

7. I spoke to Mr X about his complaint.
8. I considered the Council’s response to my enquiry letter.
9. I considered the Town and Country Planning Act 1990.
10. I considered the case Ashby and Dalby v SSE and Kirklees Metropolitan District Council (1978 and 1980).
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

The Law

12. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
13. When a council makes a decision on a planning application it can only take certain issues into account. These are often referred to as “material planning considerations.” Examples of material planning considerations include:
1. Local and national planning policies.
2. Loss of sunlight
3. Overshadowing or loss of outlook
4. Highway issues
14. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some information, such as details of access to the highway. An outline approval can be followed by a ‘reserved matters’ application, which will provide all or most of the details needed to make a decision.
15. When the Council has considered a planning application it will issue a decision notice which states whether the application is approved or refused. A decision note will sometimes include an informative note. These draw the applicant’s attention to relevant matters. Informative notes do not carry any legal weight and cannot be used in lieu of planning conditions or as a legal obligation to try and ensure adequate means of control for planning purposes.

Public Rights of Way

16. A public right of way (PROW) is a path that anyone has the legal right to use on foot, and sometimes using other modes of transport. A public footpath is only open to walkers. Legally, a PROW is part of the Queen’s highway and subject to the same protection in law as all other highways.

Changes and extinguishment of a PROW

17. The Highways Act allows councils who act as highways authorities to make orders to change the rights of way network for a variety of reasons, including extinguishing (closing) a PROW, or part of a PROW.
18. The Town and Country Panning Act 1990 (TCPA) empowers the Secretary of State and planning authorities to make diversion, or closure orders if they are satisfied the changes are necessary to enable development.
19. When considering an extinguishment order application under the TCPA, the Council must consider whether it is necessary to stop the PROW to enable the development to be carried out:
• if planning permission were granted; or
• in accordance with planning permission already granted.
20. The legal test is whether such an order is necessary for that purpose.
21. The planning authority cannot confirm or bring into operation any extinguishment order where there are outstanding objections or representations. Any order which has outstanding objections must be submitted to the Secretary of State for determination. This usually means the order is referred to the Planning Inspectorate who will appoint an inspector to deal with the case. The Planning Inspector will either hold a public enquiry or hearing, or consider the facts of the matter following an exchange of written representations.
22. The power under the TCPA to close or divert a PROW is only available if the development, insofar as it affects the path or way, is not yet substantially completed. (Ashby and Dalby v Secretary of State for the Environment 1980).

The Open Spaces Society (OSS)

23. The Open Spaces Society is a campaign group that works to protect public rights of way and open spaces in the United Kingdom, such as common land and village greens. Its website says the society is an expert on all types of PROW and helps to defend local footpaths if it is under threat. The society says it can help claim a path, remove a blockage, or lobby the highway authority.

The Ramblers

24. The Ramblers (formally known as the Ramblers’ Association) is the largest walkers' rights organisation in Great Britain and aims to represent the interests of walkers.

What happened

25. In 2012, a developer submitted an outline planning application to build a new residential development on land near Mr X’s home. Mr X objected to the proposal on behalf of the ramblers’ association and wrote to the Council. He said the development was incompatible with a PROW which ran through the land. He further objected to any consideration of realigning the PROW which would cause it to become a road.
26. The Council’s PROW team also objected to the proposal. It said the development would obstruct the PROW. It said the application had no proposal to suitably divert the PROW under the TCPA.
27. In 2013, the Council approved the outline planning application.
28. In 2014, the developer submitted a reserved matters planning application following the approval of the outline application. The PROW team objected again. It reminded the Council it had objected to the outline application, and it objected to the reserved matters application for the same reasons. It said there was still no proposal to suitably divert the PROW. It said the path would be obstructed by the development, so it was likely the developer would need to apply to extinguish the footpath.
29. The records show the PROW team wrote to the planning officer following a conversation with the developer. The PROW team said it had agreed with the developer that it should apply for an extinguishment order for the part of the PROW the new development would obstruct. The proposal was to use a footpath on a road of the development as an alternative to the extinguished part of the PROW. The PROW team agreed to withdraw its objection if the developer made an application for the extinguishment order and provided a suitable temporary diversion.
30. In 2015, the Council approved the reserved matters application. The planning officer’s report considered the proposed PROW extinguishment and acknowledged using a road as alternative was not its preferred option. However, it said that as extinguishment of only a short length of the PROW was required, a path alongside the road was considered acceptable. The reserved matters application decision notice included an informative note to the applicant. The note said a section of the PROW which passed through the proposed development would require an extinguishment order. The note said the applicant could start the process of applying for order straight away but must not build on or otherwise permanently obstruct the PROW until the extinguishment was confirmed.
31. In 2015, the developer submitted a full planning application for the development. The Council approved the application in December 2017. The decision note did not include a condition or make mention about the PROW matter.
32. In February 2019, Mr X complained to the Council as part of his current role in the OSS. Mr X complained about how the Council granted the developer planning permission for the development. He said the Council granted permission despite its own PROW team submitting objections to the proposal. Mr X said there was no evidence the applicant had made efforts to resolve the issues raised by the PROW team.
33. The Council responded to Mr X’s complaint in March 2019. It said it would not consider Mr X’s complaint about the planning applications because they took place over 12 months ago. The Council considered it was reasonable to expect Mr X to raise concerns about those applications at the time. However, the Council said it was clear comments from the PROW team were considered as part of the process and were highlighted in the committee report. The Council said it was satisfied that it followed the correct process in approving the application. The Council said the applicant had submitted an extinguishment order application and was aware Mr X had already submitted a response as part of the informal consultation. The Council said the PROW committee would consider the matter in March 2019.
34. The records show the PROW committee considered the developer’s application to extinguish the footpath in March 2019. The Council’s report to the committee considered it was necessary to extinguish part of the PROW to allow the development to be built as approved. The committee approved the application and granted an order to extinguish part of the path under the TCPA. The committee considered it was necessary to do so, to allow development to take place.
35. As there were objections to the extinguishment order, the Council will submit the matter to the Secretary of State for determination and for consideration to hold a public enquiry.
36. Mr X remained unhappy and complained to the Ombudsman. He complained the Council had not only failed to properly consider the objection from the PROW team during the planning application process but had failed to consult the OSS. Mr X further complained the Council had allowed the developer to start work on the development before submitting the extinguishment order application which he says now leaves a public enquiry into the matter pointless. Mr X said by allowing the development to continue, the Council has also pre-judged the outcome of the Ombudsman’s investigation.

My findings

37. Mr X is complaining about a planning application which the developer first submitted in 2013. Our powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred. We have discretion to go back beyond this limit, but would need a good reason to do so.
38. I know Mr X was aware of the original outline planning application in 2013, and the effect it would have on the PROW because he submitted an objection at the time as part of his role with a local ramblers’ association. While the OSS may not have been aware of the matters, I consider Mr X was. As a result, Mr X could have brought that complaint to our attention earlier. Because of this, I have not investigated how the Council approved the planning applications between 2013 and 2017.
39. I have however, used my discretion to consider whether the Council properly considered the objections from the PROW team at the reserved matters application in 2015. The PROW team submitted objections to the development, but then withdrew them at the reserved matters application following discussions with the developer. The records show the developer confirmed it would apply for an extinguishment order which satisfied the PROW’s concerns. Because of this, there were no longer objections for the Council to consider when it decided to approve the application. The planning officer considered the matter in their report and decided the extinguishment of part of the path was acceptable. The Council has followed the process we would expect and so I find no fault in the way it made its planning decision on the Reserved Matters Application in 2015.
40. Mr X complained the developer had already started work on the development before the extinguishment order was made. The decision notice includes no condition which states the developer must make the extinguishment application before starting work. While the decision notice for the reserved matters application had an informative note to the developer not to build on or obstruct the footpath, that was not legally binding, and was for information only.
41. Mr X has said the Council should have consulted with the OSS on the planning applications before it made its decision. The OSS is not a statutory consultee for planning matters which include PROW issues and so there was no fault in the Council’s actions.
42. There is no legal timeframe in which the developer had to apply for the extinguishment order and so the developer was entitled to begin work on the development before the making of the extinguishment order. While the developer could have applied for the order alongside both the reserved matters and full planning applications in 2015 and 2017, there was no obligation for it to do so.
43. The law says the powers to make the extinguishment under the TCPA are available until the development is substantially complete. At the time of writing, the evidence shows the development is in the early stages and the PROW is not obstructed. Therefore, the Council’s powers under the TCPA are still available and any work done before the granting of an extinguishment order is done at the developer’s own risk.
44. The developer has planning permission, and so the Council cannot stop work beginning. The Council is limited to investigating enforcement complaints and any alleged breaches of the planning conditions.
45. The records show the PROW committee recommended the order to extinguish part of the PROW to allow the building of the development in line with the permission granted by the Council. In making its decision the records show it considered the representations from the OSS and other parties. The committee voted unanimously that the requirements of the necessity test for the order was met. There was no fault in how the Council approved the making of the extinguishment order.
46. That order received objections and so the Council will submit the matter to the Secretary of State for determination. Mr X will have the opportunity to make further representations at a public enquiry which can also consider what harm the extinguishment of the footpath would have on the public and the users of the path.
47. As it is reasonable for Mr X and the OSS to use that process, it is not appropriate for me to comment any further on this matter. We only investigate complaints of administrative fault causing significant injustice to the individual complainant. In this case, the question of harm to the public will be decided by the Secretary of State.

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Final decision

48. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman