The Ombudsman's final decision:
Summary: There was no fault in the way the Council responded to the report of a blocked Public Right of Way.
- The complainant, to whom I will refer as Mr H, says that a Public Right of Way (PROW) was obstructed by a landowner who had planted crops on it. Mr H reported this to the Council as soon as he was aware of it. Mr H complains that the Council failed to take steps to enforce the PROW in reasonable time, and that the path was unavailable to users for more than three months as a result.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
- I reviewed Mr H’s reports to the Council, the Council’s correspondence with Mr H, the Council’s notification to the landowner, and the Council’s policy for prioritising its maintenance works on PROWs.
- I also sent draft copies of this decision to both parties for their comments.
What I found
- On 22 April 2017, Mr H discovered that a designated PROW, a footpath across a field, had been ploughed over by the landowner and crops planted across it. He reported this to the Council.
- On 24 April, the Council responded that it was investigating the matter.
- Mr H had heard nothing further by 29 May, and the footpath was now considerably obstructed. He made a further report to the Council.
- On 9 June, approximately seven weeks after Mr H’s original report, the Council told Mr H that enforcement was not a priority and that it could not give a fixed timeframe for when it would take action.
- Mr H made further reports to the Council in July. The crops had now grown above head-height and there was no sign of the footpath.
- On 6 August, Mr H discovered that the landowner had reinstated the path, but to less than its required minimum width of one metre.
- On 11 August, Mr H received a message from the Council, indicating that they had originally contacted the landowner on 18 May by email, before sending a ‘Notice A’ on 28 July.
- Mr H made a complaint to the Council. He asked:
- An apology from the Council for the inconvenience this caused him, and for failing to inform him when enforcement would be carried out;
- An explanation from the Council for the three-month delay;
- For the Council to publish a clear enforcement policy, similar to that produced by another local authority; and
- For the Council to now enforce this PROW effectively, and to act more robustly against the landowner in question in the case of future similar offences.
- The Council responded on 7 September. It said that its resources were limited and it had to prioritise, and due to the changing nature of its priorities it had not been possible to give a timeframe for when it could act. As the footpath was now passable (despite being an insufficient width) it would remain a lower priority.
- The Council apologised for the inconvenience Mr H had endured, but could not guarantee that it would produce a specific enforcement policy like the other local authority. It also could not guarantee that it would take more robust action against the landowner in future.
Legislation and guidance
- The Rights of Way Act 1990 (‘ROW Act’) sets out the rights of private citizens to use Public Rights of Way, and the responsibilities of landowners and highways authorities (in this case, the Council) to maintain them. It creates amendments to the Highways Act 1980 (‘Highways Act’).
- Sections 134 and 137A of the ROW Act state that, where it is not practical for a landowner to avoid disturbing the surface of a PROW (for example, when ploughing a field), then he or she must restore the path to its required width within a set period. This is 14 days from the date of the first disturbance and 24 hours from any subsequent disturbance. Failure to do so by the landowner is an offence which may attract a fine.
- The Department for the Environment, Food & Rural Affairs (Defra) published guidance in its ‘Rights of way circular’ in 2011. At paragraph 6.16, it states:
The public are entitled to expect that all rights of way will be kept open and
available for use. It is important that authorities act quickly to investigate any
complaint made to them. Authorities should ensure that any obstructions they
discover or have reported to them are removed as soon as is reasonably
- Mr H used a specialist website to report the obstruction of the PROW to the Council. It includes a series of photographs he took, showing the obstruction progressing until the footpath appears completely impassable due to the tall crops growing on it. Mr H’s photos also show that, once the footpath had been reinstated, it was less than the minimum one metre in width (demonstrated with the use of a tape measure in the pictures).
- The ROW Act gives landowners some leeway in disturbing footpaths, to allow them to plough and plant crops in the surrounding land. However, they must reinstate the footpath within a fixed period – 14 days if it is the first disturbance, and 24 hours for any subsequent disturbances.
- There is no indication how long had passed when Mr H first noticed the obstruction, but it is clear that the landowner should have reinstated the path by 6 May at the latest. Additionally, the Act does not permit a landowner to plant crops directly on a footpath in any case, which is what had happened here.
- Where a landowner has not met his or her statutory duty to reinstate a PROW, the Council is obliged to take enforcement action. The Council’s first contact with the landowner was on 18 May, 26 days after Mr H reported the matter to them. They then served a formal notice on the landowner on 28 July, approximately 14 weeks after the initial report.
- I note that the path was cleared (although not to Mr H’s satisfaction) within approximately one week of the notice, suggesting that the landowner was receptive to it. It is arguable that, had the Council served the notice earlier, the footpath would not have been out-of-service for such a length of time.
- However, neither the ROW Act, nor the Defra guidance, sets out a formal timescale for enforcement by the authorities. The Defra guidance specifically states that the authority in question should act “as soon as reasonably practicable”.
- The Council says that it did not act sooner because it had limited resources and had to manage them carefully. It explained to me that it prioritises rights of way issues according to the severity of the problem and how it affects others, giving an ‘immediate’ priority to issues with health and safety implications. Mr H’s report was given ‘low’ priority, because it “affect[ed] only an isolated, generally unused path”.
- While the obstruction of the path was evidently frustrating for Mr H and others who wished to use it, I cannot say there was fault in the fact that the Council did not give it higher priority. It was not causing serious harm or inconvenience to the public in general.
- Mr H’s response to the Council on this point is that it has a duty to allocate appropriate resources to its functions, and that it has the power to recover any expenses from the landowner. There should therefore be no question about resources.
- It is true that, where the Council has entered the land in question and undertaken the necessary clearance work itself, it has the power to recover its expenses from the landowner. But this does not mean that the Council can afford to prioritise a low-impact issue over more urgent matters.
- Mr H has requested an apology for the Council’s failure to act sooner and for failing to provide him with an estimate for when enforcement would take place.
- The Council has already apologised to him for the inconvenience he had suffered and I do not consider that there is anything further for it to add to this. The Council has also explained that it had been unable to give Mr H an estimate for when it would take action, due to the changing nature of its priorities. Again, I consider that the Council has given Mr H the explanation he sought.
- Mr H wishes to see the Council publish a specific enforcement policy, setting out a timetable for when it will take action against an offending landowner. He refers to a similar policy published by another local authority. Mr H would also like the Council to explain how it will approach the issue of persistent offenders in future.
- I have reviewed the other authority’s policy. It gives clear guidance for when the Council will take action against a landowner who has obstructed a PROW in its area. I accept that this is good practice. But there is no rule which says the Council must publish a similar document, and so I cannot find fault in its failure to do so.
- For the same reason, I cannot find fault in the Council’s failure to produce a specific policy dealing with persistent or repeat offenders.
- In conclusion, the Council acted in accordance with its own set priorities in dealing with this PROW. This meant that there was a considerable delay in sending formal notification to the landowner. This was unfortunate, as it meant that Mr H could not use the footpath for several months, but it is not fault, and the Council has explained why it could not act sooner and apologised for this.
- There was no fault in the way the Council dealt with this blocked PROW. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman