Nottinghamshire County Council (17 016 041)

Category : Transport and highways > Highway adoption

Decision : Not upheld

Decision date : 29 May 2018

The Ombudsman's final decision:

Summary: Mr X complained about a footway on his land, which is included in maps the Council holds. The Council was not at fault. It could not take enforcement action 30 years after the development was built and in any event, it was not the relevant planning authority. It has not taken land, as the land is still within Mr X’s title’s boundary. The Council’s maps do not show registered extent of titles, as these are different to rights of way.

The complaint

  1. Mr X complained the Council:
      1. allowed a footway to be installed in the 1980s on land which is within the title for the property Mr X later purchased in the 1990s. The path was not present on the plans that gained planning permission;
      2. has wrongly taken land that should have been part of Mr X’s property's title, to use as an adopted public highway;
      3. wrongly represents Mr X’s property's title on the documents it holds showing highways in its area, which has led to the title showing incorrectly on ordnance survey and land registry plans.
  2. Mr X is concerned this prejudices his title and will make it difficult to sell his property.

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What I have investigated

  1. I have considered parts 1 b) and c) above.
  2. I have not investigated part 1a) relating to the Council’s actions in the 1980s (bullet point one). I have explained this further in “the Ombudsman’s role and powers” and “parts of the complaint that I did not investigate”. However, I have considered the Council’s actions in 2017 when Mr X told it there may have been a breach in the 1980s.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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)

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How I considered this complaint

  1. For this investigation, I:
    • considered the information Mr X provided and discussed the complaint with him;
    • looked at the relevant law and guidance, including the Highways Act 1980; and
    • wrote to Mr X and the Council with my draft decision and considered their comments.

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What I found

  1. Mr X provided copies of the plans that gained planning permission in the 1980s when this development was built. The agreed plans did not include a footway within his property’s title. However, the development was then built with an added footway within the boundaries of his property.
  2. If a breach of planning control exists unchallenged for many years, it becomes lawful and councils no longer have enforcement powers.
  3. Mr X made the Council aware in 2017 that there was a potential breach of planning control. A council has no powers to enforce against a breach of planning control that becomes evident 30 years after a development was built. The Council told Mr X it could not pursue the matter. In any event, this Council was not the relevant planning authority for this development. The Council was not at fault.

Council taking land and wrongly representing the property’s title

  1. Title deeds held by the Land Registry show the extent of land in a registered title. Councils are required to keep maps of public rights of way, which might not look the same as title deeds. This is because they represent different things, and it is possible for a public right of way to also be within the boundary of private title deeds. When this is the case, the land owner cannot build on that right of way even though the land belongs to them as this would be considered obstructing a public right of way. However, if they wish to build on the land, they can apply to the Council to extinguish the public right of way.
  2. Mr X applied to the Land Registry to alter his property’s title in December 2017. This was because he believed the Council’s records, which showed the footway, impacted the extent of his title. He believed the Council had therefore taken land from his title. The Land Registry told Mr X it could not alter his title. Mr X assumed this was because the Council’s map, and subsequently the ordnance survey, showed the footway rather than showing the title boundary as it should be.
  3. However, the Council’s maps and the ordnance survey do not show title boundaries. They show the layout as is present ‘on the ground’. As explained above, land within a property’s title, and so owned by that property’s owner, can also be a public highway. Information the Council holds and the ordnance survey show footways, like that on Mr X’s land, which the Council has adopted. The maps are not incorrect as the Council did adopt the footway on Mr X’s property in the 1980s.
  4. Having adopted a footway does not make the Council the landowner. Adoption simply means that it is the Council, and not the landowner, who has responsibility for the upkeep of the footway. That the Council has adopted this footway on
    Mr X’s land benefits him, while the footway exists, because it means it is not
    Mr X’s responsibility to maintain it for use by members of the public.
  5. The Land Registry confirmed in its letter of December 2017 that its records were correct and were in line with the extent of Mr X’s land as he understood it. The Land Registry could not alter the title because it was already in line with what
    Mr X was asking for. If Mr X believes the title deeds the Land Registry holds no longer represent the land that was originally registered for that title, that is an issue he would need to take up with the Land Registry directly.
  6. It is open to Mr X to apply to the Council to extinguish the public right of way.

The Council’s complaint responses to Mr X

  1. Mr X wrote to the Council on 12 September 2016, complaining the Council had taken a significant amount of his land and used it to build a footway.
  2. The Council responded on 24 May 2017. It explained it had been delayed while seeking legal advice. It explained the highways records showed the current, ‘as built’ layout to be adopted public highway. Mr X had not provided evidence its records were wrong. It explained how the land being adopted highway was of advantage to Mr X.
  3. Although the Council delayed responding to Mr X, this did not cause him a significant injustice. He replied to the Council in January 2018 saying its investigation included incorrect information. He disagreed the Council’s records were correct and he felt the Council had not properly considered the original agreement for this development which depicted his title.
  4. The Council told Mr X in January 2018 its complaints process could not solve legal issues and it advised him to seek legal advice. It also explained due to the time lapsed since the fault Mr X alleged, and the situation being as it was when Mr X bought his house, it could not consider his complaint further. The Council explained its officers had looked over the information Mr X sent and its position had not changed. This was a view the Council was entitled to take. The Council properly considered the information Mr X supplied. The Council is not at fault.

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Final decision

  1. I have not found evidence of fault by the Council and I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. We cannot investigate late complaints unless we decide there are good reasons. Mr X says he only became aware of the Council’s plans, which he believed to be wrong, in 2016. However, this footway was present within this property’s title when Mr X purchased the property in the 1990s. It was open to him to query this at the time with the support of his Solicitor. There is no worthwhile outcome I could achieve through further investigation of events in the 1980s because councils have no power to take enforcement action after 30 years. This Council was not the relevant planning authority.

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Investigator's decision on behalf of the Ombudsman

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