Summary: We will not investigate this complaint about the failure of the Council to require a new planning application for changes to the location of a footpath on the road next to a new housing development. We have not seen enough evidence of fault in the way the Council considered the changes made by the developer after entering a section 278 agreement with the Highways Authority. Also, we cannot achieve the outcome Mr X is seeking.

The complaint

1. Mr X complains the Council has incorrectly used section 278 of the Highways Act 1980 (s278) to make changes to an approved planning application. He says it should have required the developer to make a new application under section 73 of the Town and Country Planning Act which would have allowed residents to object to the changes.
2. He wants the Council to make the developer move a footpath and restore the full width of the road.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council granted planning permission for some new houses in the village where Mr X lives. An approved plan showed a footpath over a ditch at the edge of the road.
7. However, as the developer could not culvert the ditch, they built the footpath next to it, thereby narrowing the road, making a section of the highway single track. Mr X says this is dangerous and has caused several near misses. He complains this was done without consulting residents and is a breach of planning control.
8. In response to Mr X’s complaint the Council advised the relevant condition on the planning permission says the plan showing the footpath over the ditch as being for indicative purposes only. It requires the developer to provide details of the offsite highway works to the Council for approval and the approved scheme to be implemented according to highway authority standards.
9. The developer entered a section 278 agreement with the Highways Authority (HA).
10. A section 278 agreement allows developers to enter a legal agreement with the HA to make permanent changes to a public highway, as part of a planning approval. The work must be carried out according to the design and specification of the HA.
11. The HA confirmed the location of the footpath on its land was acceptable.
12. The Council has confirmed the map showing the original location of the footpath was indicative only. It also confirms the overall layout of the development has not changed and meets the requirements of the planning permission. Therefore it is satisfied the relocation of the footpath and resulting narrowing of a section of the road is not a material change to the development and a planning application is not required.
13. It is for the Council to decide what is a material change to a planning application. In this case, it decided the relocation of the footpath is not. This is a decision it is entitled to make. The HA has decided the location and specification of the footpath accords with the section 278 agreement.

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Final decision

14. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council considered the changes to the location of the footpath to justify an investigation.
15. Also, we cannot achieve the outcome Mr X is seeking.

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Investigator's decision on behalf of the Ombudsman