Summary: The Ombudsman found no fault on Mr K’s complaint about the Council’s consideration of the impact a new hedgerow would have on an adjoining public footpath. The Council considered his reports of obstruction. The law was unlikely to find the temporary structures were obstructions and the path was temporarily closed anyway. The Council also decided there was no obstruction by the hedge’s width on the information it had.

The complaint

1. Mr K complains the Council failed to properly consider the impact a Cornish hedgerow, planted under a planning condition about boundary treatment, would have on an adjoining public footpath; he claims the hedge partially obstructs the path, making it difficult for members of the public to use.

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What I have investigated

2. The paragraph at the end of this draft decision explains why I have not investigated all the complaints Mr K made.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)

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How I considered this complaint

6. I considered all the information Mr K sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr K and the Council. I considered his response.

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What I found

7. Mr K owns land next to a site which applied, and received, planning consent for a development several years ago. Running through the site is a footpath over which the public has a right of way. Mr K is unhappy with the way the Council dealt with his reports about its obstruction.
8. He believes the Council should require the applicant to submit a non-material amendment application so it can protect the path from obstruction from a new hedge by way of planning condition. A non-material amendment application is for when planning consent is granted but, it becomes necessary to make amendments to it. It removes the need for a new planning application as it deals with only a small change.
9. Mr K notes the planning consent included ‘informatives’. An informative allows the Council to draw an applicant’s attention to other relevant matters but, do not carry legal weight. The informatives on the planning consent reminded the developer of its obligation about public rights of way and stated: no building materials to be stored on the right of way; no additional barriers were to be placed across the right of way; the width of the right of way available for public use must not be reduced.

Obstruction: contractor’s equipment

10. Mr K contacted the Council about the developer’s contractor blocking the path with their work hut, a portaloo, and large freight container. He served the Council with a notice requiring it to secure the removal of an obstruction from the path. (section 130A(1), Highways Act 1980)
11. When responding to his formal complaint, the Council explained:

• while its Countryside Access team was unaware of the claimed obstructions, it was irrelevant because the path is closed under a Traffic Regulation Order. The path’s closure was due to engineering difficulties and a possible danger to the public due to an unstable structure and steep drop. The Council told him it would take no further action while the path remained closed;
• the contractor’s hut did not qualify as a valid obstruction under section 130A(4) Highway Act 1980. The Council previously explained the shed was a building of a temporary nature; and
• informatives set out in the planning consent are included to remind applicants of their responsibilities under other legislation. It cannot take enforcement action under an informative as it could against a breach of planning condition, for example.

12. In response to my enquiries, the Council explained the history of the site and the path. The Countryside Officer does not recall seeing temporary buildings. Even if they were on the path, the Council states they were temporary in nature and not considered relevant as the footpath is closed under a Traffic Regulation Order because of the danger to the public.

Analysis

13. Under section 130A(1) of Highways Act 1980, the Council, as highways authority, has a duty to assert and protect the rights of the public to use and enjoy any highway for which it is highway authority and to prevent, as far as possible, the stopping up or obstruction of its highways.
14. If a highway authority does not respond to a report, or act as it said it would for example, a member of the public can make an application to the magistrates court. This allows the public to ask the court to make a highway authority carry out its duty to ensure its highways are not obstructed.
15. The law sets out various circumstances and types of obstruction this procedure does not apply to including: obstructions caused by permanent or temporary buildings or material for their construction; in cases where the path is out of repair. (section 130A (4)(a) Highways Act 1980)
16. I found no fault on this complaint and in reaching this conclusion, took the following in to account:
1. The temporary nature of the constructor’s hut, the portaloo, and container which may not legally amount to an obstruction because they are connected to carrying out construction of works to a building; and
2. Even if the Council was at fault for failing to take enforcement action against the developer for these structures, I fail to see why it would need to do so when the path was temporarily closed under a Traffic Regulation Order. It would have been a waste of public money, with little chance of success, with little public benefit as members of the public cannot pass along the path anyway.

Obstruction: hedge

17. Mr K reported his concerns to the Council of a new Cornish hedge on the site’s western boundary encroaching over the path and obstructing it. He sent a site plan with a hatched area he had drawn on it to represent the hedge and its width.
18. The Council told Mr K it was satisfied the path is not affected by the hedging he reported. If the area it covers is judged to be highway, or interferes with a public footpath, it can contact the applicant about sending a non-material amendment application to change the hedge’s position to address it.
19. In response to my enquiries, the Council confirmed it was satisfied from the information it had, which included Mr K’s hatched drawing on the plans showing the hedge, that it did not affect the path.

Analysis

20. I found no fault on this complaint and in reaching this conclusion, took the following in to account:
1. The hatched area Mr K drew on the plans showing the section of the hedge he is concerned about was not encroaching on to the path. The path was shown as a red dotted line away from the hedging/boundary; and
2. If the hedging starts to reduce the width of the path, the Council can investigate and consider what action is appropriate. At the moment, concerns about its width are speculative.

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Final decision

21. The Ombudsman found no fault on Mr K’s complaint against the Council.

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Parts of the complaint that I did not investigate

22. I did not investigate any complaint Mr K had about the following:
1. The temporary closure of the footpath by the Council: This is because this is being investigated by a colleague (case reference 20003331).
2. Any complaint about the handling of the initial planning application (PA17/11043): This is because of the amount of time that has passed since it was granted consent in December 2018. As Mr K is aware from dealing with my colleague, 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)

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Investigator's decision on behalf of the Ombudsman