Summary: Dr X complained about the Council’s refusal to change the status of the lane where he lives and include it in the list of streets. The Council was not at fault because it considered the evidence provided by Dr X and explained why the lane is a public footpath with private rights of way.

The complaint

1. Dr X complains about the Council’s refusal to accept the lane on which he lives (Lane A) as a public highway, and its general handing of this matter. He says Lane A should be included in the Council’s list of streets.
2. He says Lane A’s incorrect classification means it is not maintained to the required standard, causing potential for accidents and injury.
3. He says this has caused considerable frustration, as well as his time and trouble corresponding with the Council over several years.

Back to top

What I have and have not investigated

4. Dr X’s complaint includes matters that occurred since 2018. His complaint is therefore late. However, I have found it appropriate to exercise my discretion to consider the complaint because Dr X asked the Council to reconsider his request in 2021 and this raised news issues that have not been addressed by the Council.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

9. I spoke to Dr X and considered the information he provided.
10. I made enquiries of the Council and considered its response.
11. I considered the relevant law.
12. Dr X and the Council had the opportunity to comment on my draft decision. I considered any comments received before making my final decision.

Back to top

What I found

Relevant law

Highways Act 1980

13. The Council, acting a Highways Authority, is responsible for maintaining a highway that is maintainable at the public expense (Highways Act 1980, section 41).
14. All councils should keep a list of streets that are highways within its area that are maintainable at public expense (Highways Act, section 36(6)).
15. Although the term highway is popularly used to refer to roads, its legal definition covers any public road, track, or path.

Wildlife and Countryside Act 1981

16. All local authorities must prepare and keep up-to-date ‘definitive maps and statements’ to show public rights of way in their area such as public footpaths and bridleways.
17. The law sets out how people may apply to their council for a Definitive Map Modification Order to make an amendment to what is recorded. This is under changing a footpath to a restricted byway. (Wildlife and Countryside Act 1981, section 53)

Countryside and Rights of Way Act 2000

18. A restricted byway gives a right of way on foot, horse or non-mechanically driven vehicles. (Countryside Rights of Way Act 2000, section 48)

Back to top

What happened

19. Dr X lives on Lane A. It is officially registered as a public footpath. It is a private road for the purpose of vehicular use. He says it is a public highway, that should be included in the list of streets under the Highways Act 1980.
20. Dr X first asked the Council to change its status in March 2018. He says the Council failed to respond to several letters and so made a further request in 2019. In support of this, he submitted substantial evidence that he says demonstrated Lane A has been a public highway for over 400 years. He also relied on the fact the Council has already carried out maintenance to Lane A.
21. The Council responded to Dr X in March 2019. It said Lane A was a public right of way footpath and maintained as such. It said it had reviewed the evidence provided by Dr X and carried out its own research of the relevant historical maps in reaching this conclusion.
22. Dr X wrote to the Council in March 2021, referring to his “application to have Lane A considered for a change of status from a private highway with register public rights of way to a public non-vehicular highway, presumably with registration on the list of streets”. Dr X invited the Council to reconsider, what he believed to be, definitive historical evidence that Lane A was a public vehicular highway.
23. Dr X made a formal complaint about matter to the Council in May 2021. He said the Council had disregarded his evidence. In its response Dr X was advised of his right to apply to change the status of Lane A to a “public restricted byway” under the Wildlife and Countryside Act 1981 Act. It also explained that, based on the available evidence, it was unlikely his application would be successful.
24. Dr X found this response confusing because he had made his request under the Highways Act 1980. Disappointed and frustrated by this outcome, he brought his complaint to the Ombudsman.
25. In response to the Ombudsman’s enquiries, the Council has said:
1. Lane A is a public footpath;
2. it maintains its previously stated position that it is open to Dr X to apply to change its status to that of restricted byway, but based on the available evidence, this is likely to be unsuccessful;
3. there is a difference of opinion as to the strength of Dr X’s evidence, in that Dr X attaches more weight to it than the Council;
4. its own research showed Lane A was “stopped up” as an all-traffic road prior to 1868;
5. it agreed it had carried out some maintenance to Lane A, but this was in the context of it being a public footpath; and
6. it accepted is response to Dr X’s enquiry took longer than it should have but this was due to complex and time-consuming nature of the research that had to be carried out. The Council apologised for the delay.
26. In response to the Ombudsman’s enquiries, the Council provided an additional analysis of the evidence previously provided by Dr X. It has also provided evidence that Lane A is included, as a public footpath, on the list of streets.

Analysis

27. The Ombudsman is not an appeal body, and it is not our role to decide the correct legal status of Lane A, that is the Council’s responsibility. We investigate the processes the Council followed in responding to Dr X’s request to have its legal status either confirmed or changed.

Dr X’s request to change the status of Lane A

28. Having considered Dr X’s correspondence to the Council over several years, it is my interpretation that when he first contacted the Council in 2018, he wanted the Council to either:

• correct its records (including the list of streets) to confirm Lane A is a public highway, that is maintainable at public expense; or
• based on the evidence he provided, adopt Lane A as a public highway, that is maintainable at public expense.

29. The Council provided its initial response in March 2019. This explained the Council’s own research of the historical records confirmed Lane A is “a public highway and is for the public on foot only”. It also said that for the purpose of vehicular traffic, it was a private road. If the residents of Lane A wanted it to be adopted as a public vehicular route, it would need to be widened at their own expense.
30. In my view, the Council’s response from 2019 dealt with Dr X’s initial request, albeit not to Dr X’s satisfaction. It explained, by reference to Lane A’s historical context, what its legal status was, and what needed to be done for it to be adopted as a public road for vehicular use. This was a decision the Council was entitled to make.
31. In Dr X’s more recent correspondence from 2021, he specifically asked the Council to change the status of Lane A to what he described as “public non-vehicular highway. The Council interpreted this as a request to reclassify Lane A to a restricted byway. This was a reasonable assumption for the Council to have made, taking into account the legal definition set out in the Countryside and Rights of Way Act 2000. I have found no evidence of this specific request being made previously by Dr X.
32. The Council considered this request and advised Dr X that he should make an application under the Wildlife and Countryside Act 1981. The Council has explained its rational for this decision (paragraph 25 above). It has also confirmed Lane A is included in the list of streets, as requested by Dr X.
33. In my view, the Council properly considered Dr X’s requests and advised him of the correct legal processes to follow to change the status of Lane A to either an adopted vehicular highway or restricted byway.
34. The Council was not at fault.

Status of Lane A and its inclusion in the list of streets

35. In reaching this decision, I make no finding as to the correct status of Lane A. As I have said above, this is not the role of the Ombudsman. The Council has considered the evidence provided by Dr X and reached its own conclusion that Lane A is a public footpath. This is a decision the Council was entitled to make, and the Ombudsman will not interfere with this.
36. It is evident from the records I have seen that Dr X wanted Lane A included in the list of streets and was part of his complaint. The Council has provided the Ombudsman with evidence that Lane A is included, as the law requires it to be. Again, there is no fault here.

Delay

37. The case records I have seen show Dr X first asked the Council to review the status of Lane A in 2018, although the Council did not respond. In its response to the Ombudsman, it has apologised for the delay in dealing with Dr X’s original submissions. As this happened several years ago, I do not intend making a finding of fault because this is a matter Dr X could have complained to the Ombudsman about sooner. I also consider the Council’s apology is sufficient. The Ombudsman cannot add anything further to this.

Back to top

Final decision

I have not found the Council to have acted with fault. On this basis I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman