Somerset County Council (17 007 818)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 09 Mar 2018

The Ombudsman's final decision:

Summary: Ms X complains the Council has delayed in completing its modification investigation of Bridleway Y. The Council’s failure to complete its modification investigation of this bridleway in a timely manner is fault. But this fault has not caused Ms X a significant injustice.

The complaint

  1. The complainant, whom I shall refer to as Ms X complains the Council has failed to carry out works to open up a bridleway.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. As part of the investigation, I have:
    • considered the complaint and the documents provided by Ms X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Ms X;
    • sent a statement setting out my draft decision to Ms X and the Council and invited their comments. I have considered the Council and Ms X’s comments.

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What I found

  1. In 2011 the Council received notices under section 130A of the Highways Act 1980 for the removal of obstructions on Bridleways Y and Z. In considering the obstructions the Council looked at evidence which cast doubt on the correct alignment of Bridleway Y.
  2. The Council began an investigation into the status and alignment of Bridleway Y. The Council states that as it undertook this investigation of its own accord, rather than in response to an application form a member of the public, there is no statutory timeframe for its completion. The Council agreed in 2012 to prioritise the investigation.
  3. The Council prepared a draft report in 2013 which recommended amending the alignment of Bridleway Y where it meets an unclassified road by around 20 metres to the south of its current position. The Council did not proceed with this draft report as another officer reviewed the evidence and came to a different view. The second officer’s recommendation was that a modification order was not necessary, and that Bridleway Y was not obstructed. The officer concluded any difficulty in reaching the bridleway was caused by the gradient and vegetation on the roadside verge.
  4. Officers from the Council and the National Park Authority visited the site with representatives of the Bridleway association in late 2013 to consider possible solutions over the highway verge. They decided it would be necessary to establish exactly where the adopted highway finished and what additional land would be needed to find a solution. A survey concluded additional land would need to be dedicated as highway and the cost of a solution was unaffordable. Given the costs involved the Council decided it would only consider any works once the modification investigation had been concluded.
  5. Ms X complains that the Council’s investigation is still incomplete and the obstruction on Bridleway Y has not been removed. She has routinely contacted the Council and requested updates on the investigation and is frustrated by the lack of action.
  6. In response to my enquiries the Council states that although the status and alignment of Bridleway Y remains a priority, there are matters of higher priority. Bridleway Y is not the subject of a modification application to the Council so there is no deadline for determination. The Council has a significant number of outstanding applications and many applicants have appealed against the non-determination of their modification applications. As a result, the Secretary of State has directed that the Council determine these applications within set deadlines. The Council therefore must prioritise these applications above its investigation of Bridleway Y.
  7. The Council also notes that Bridleway Y is currently open, albeit that the access to it over the highway verge is not practical or safe for equestrian users and cyclists. The route is practical and safe for those on foot. It also notes that Bridleway Z leaves the road not too far to the south of Bridleway Y and offers a convenient alternative bridleway.
  8. The Council is unable to provide a timeframe for the completion of its modification investigation of Bridleway Y.
  9. Ms X has responded to the draft decision. She states Bridleway Y has always extended onto the public highway and it is not necessary to identify any additional land. Ms X states horses can navigate steep inclines as can be seen on many bridleways leaving roads within the national park. All that is required is a track of about 2 feet wide zig- zaging down the bank. Ms X believes the Council could, with a small amount of work, make a safe route over the highway verge.
  10. She believes the delay in resolving this matter is a great injustice to local horse riders. The suggested alternative route is not as convenient, as it is on a slippery road with farm traffic whereas the route over the highway verge gives a grass surface over fields.

Analysis

  1. Bridleway Y is not the subject of a modification application so there is no timeframe for completion or right of appeal. But having decided it should investigate Bridleway Y’s status and alignment, we would expect the Council to complete this investigation in a timely manner.
  2. Notwithstanding other competing priorities, the Council has allowed this matter to drift for an excessive period of time. The investigation began in late 2011 and although the Council made it a priority in 2012 it is still incomplete over five years later. And the Council is unable to provide any indication as to when the investigation will be complete.
  3. I consider the delay in completing the modification investigation for Bridleway Y to be fault on the part of the Council.
  4. Having identified fault, I must consider whether this has caused Ms X a significant injustice. Bridleway Y cannot be accessed safely from the highway on a horse, but there is alternative bridleway close by. I recognise this may not be Ms X’s preferred route, but it is an accessible alternative. I also note that Ms X has moved away from the area. She would not therefore be using Bridleway Y on a regular basis, even if it were accessible from the highway.
  5. Based on the information available I am not persuaded that the Council’s delay in completing its modification investigation of Bridleway Y has caused Ms X a significant injustice which requires a remedy.

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Final decision

  1. I have now completed my investigation on the basis the Council’s delay in completing the modification investigation is fault, but this fault has not caused Ms X a significant injustice.

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Investigator's decision on behalf of the Ombudsman

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