Doncaster Metropolitan Borough Council (17 010 885)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 04 Sep 2018

The Ombudsman's final decision:

Summary: Mrs X complains the Council has known since at least 2014 that a bridleway ran next to her property but continued to encourage vehicles to use it. We found there was fault in the Council’s approach to Mrs X’s complaints about the use of the bridleway. This fault stretches back as far as 2012 and has caused Mrs X significant injustice. The Ombudsman recommended how this should be remedied by the Council and it has agreed to do so.

The complaint

  1. Mrs X complains the Council has known since at least 2014 that a bridleway ran next to her property but continued to encourage vehicles to use it. She is unhappy with measures the Council has taken to prevent vehicular access since it acknowledged that it was a bridleway, and says it is failing in its duty to maintain and protect it.

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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)
  3. 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)

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How I considered this complaint

  1. I spoke with Mrs X about her complaint and read the information she sent me. I asked the Council questions and reviewed the material it sent me in response.
  2. I sent a copy of a draft decision to Mrs X and the Council and I invited them to comment on it. After considering remarks from both parties, I made some amendments before producing this final decision statement.

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What I found

  1. The Highways Act 1980 states that a ‘bridleway’ is, “…a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway.”
  2. This definition means a bridleway cannot be used by a motor vehicle except where someone has to drive over it to access their property a short distance away or there a private right of way (ie. the permission of the landowner). Councils have a responsibility to maintain and protect public rights of way, including bridleways.

Timeline of this complaint

  1. In 1953, a bridleway which runs next to Mrs X’s house was added to what is known as the ‘definitive map’ by the local authority which later became the Council. As I will explain later, Mrs X was not aware it was a bridleway until recently. Parliament had ordered local authorities to create a definitive map of public rights of way and they have been obliged since then to keep it up to date. Changes can only be made to the definitive map by following a defined legal process, which allows for objections.
  2. In the 1970s, the Council’s predecessor bought some land that was formerly used for an industrial purpose. In time, it was converted into a public park accessible to everyone. The main car park for visitors was a short walk away, next to the main road running through the area. In 1996 the Council then developed a new car park for the park, access to which was only possible along the bridleway next to Mrs X’s house. It says access to the park was already possible along the bridleway at that point.
  3. The Council says it always believed it had been assigned a private right of way along the bridleway when the land was bought originally. It thought this private right of way could in turn be extended by it to apply to all visitors to the park who wanted to drive to the new car park. Mrs X says the new car park soon became the one used the most because it was much closer to the park itself.
  4. Mrs X says this regular use has led to anti-social behaviour, inconsiderate parking on the bridleway from those visiting the park and a deterioration in the surface of the bridleway itself. Mrs X says in September 2016, when she complained about the condition of the bridleway, she was told by the Council it was an unadopted road and responsibility for its upkeep did not fall to the public purse. Instead it said to Mrs X it would cost her over £7,000 if she wanted it to do the work. The Council says it always did what was necessary to maintain the bridleway and the quote it gave to Mrs X was for tarmac it felt went beyond that legal duty.
  5. Mrs X says she made complaints from 2009 onwards about the issues she felt were caused by the car park. The Council says it became actively involved in 2011 and took measures to deal with Mrs X’s concerns. It tasked patrols from officers, liaised with the police, redesigned the car park to create more parking space and restricted the opening hours of the car park overnight. The latter was enforced by installing a gate in late 2012 across the car park entrance. In practice, this only worked because Mrs X’s husband agreed to be responsible for opening it each morning and shutting it each night. The Council does not appear to have had the resources to do this itself and Mrs X and her husband only accepted the responsibility because they felt there was no alternative.
  6. At one point, Mrs X spoke to one of her local councillors, who suggested the track next to her house was a bridleway. At that point she was unaware of its status, having believed the Council when it told her it was an unadopted road. By researching the definitive map, she discovered it was a bridleway and began to challenge the Council about allowing cars to use it. She has also sought advice from groups who specialise in the law around public rights of way. Her view is the car park had been ‘illegal for 20 years’ because of this status.
  7. The Council points out the definitive map is a public document and it has never sought to hide the status of the bridleway. As I explained earlier, it did however believe it had a private right of way over it for vehicle access to its car park. Mrs X began to challenge the Council on this position and by July 2017 matters had reached a head when Mrs X’s husband was refusing to unlock the gate, which had now been moved by the Council across the bridleway. Mrs X says the intent was only to keep the gate locked until the Council dealt with their concerns about anti-social behaviour. The Council says this led to complaints from members of the public wanting to use the car park.
  8. The Council responded to this by committing to install cameras to gather evidence about those causing a nuisance and said it was “endeavouring to get…bollards installed ASAP”. The intent was to allow access in the day and then raise them at night. There were meetings between Mrs X and the Council in August and September 2017 but no solution was reached. In an email in early September 2017, the Council said to Mrs X it was now looking at the options and said it would ‘work towards producing some final proposals to enable a resolution’.
  9. Mrs X thought this was vague and told the Council it was unacceptable it was essentially leaving her and her husband to manage the issue on its behalf. There were then emails back and forth between the parties. The Council said it hoped to have a resolution by the end of the month but did not say clearly why or how this would come about. Mrs X clearly believed it to be an agreement that vehicle access would be stopped at that point and said so in one email.
  10. In fact, during this period, the Council was seeking outside legal advice about the status of the bridleway and whether it had been wrong in its view about the private right of way it was extending to users of the car park. This concluded the Council did not benefit from a private right of way and therefore the status as a bridleway meant motor vehicles could not drive along it.
  11. The Council continued to correspond with Mrs X and said, ‘one area of work has now been concluded, leaving two remaining’ but did not explain these further. It then filed an application for a Certificate of Lawful Use/Development (CLUD) for the car park itself. The Council also acts as the local planning authority, so the application was made by one department to another, as the law allows. As part of this process, the planning department asked for independent legal advice. The existence of this application was in the public domain, and Mrs X soon became aware of it, but there is no evidence of the Council explaining why it was taking this action or alerting her to it.
  12. In November 2017, it said there had been progress on all three actions and it expected the second action would be complete the following month. Mrs X asked what the three actions were but did not receive an explanation. She then made a formal complaint to the Council and it admitted it had made an oversight with the car park that it was now trying to correct. It invited Mrs X to comment on the CLUD application and said it would stop directing people to it on its website.
  13. In December 2017, the Council admitted in writing to Mrs X that it did not own the bridleway leading to the car park and that use of vehicles on it was against the law. This was repeated by the Council’s Monitoring Officer in January 2018, when he said he had directed the car park should be closed because it was ‘inappropriate to have a public car park which is only accessible by a bridleway’.
  14. There was then further contact between Mrs X and the Council, in which it again said it would consider installing droppable bollards. However, just two days later, the Council emailed Mrs X to take that offer off the table. It now said it would not install gates or bollards on the bridleway as there was no barrier showing on the definitive map at that end of the bridleway. Mrs X asked the Council to reconsider but it declined. The Council later changed the gate’s position, putting it back over the entrance to the car park where it had originally been placed.
  15. In April 2018, Mrs X met with the Council and was given a commitment that a gate would now be installed within two weeks. However, the Council later went back on this, saying the person who made that decision did not have access to the legal advice it was in the process of following.
  16. As it stands, the Council says it is continuing to follow to the course of action laid out in the legal advice it received. Although the car park remains closed, Mrs X says there are still issues with cars driving and parking on the bridleway instead. The Council says it has put up signs warning against driving on the bridleway and it continues to send images of culprits seen on its cameras to the local police. As driving on a bridleway is a criminal offence, responsibility for enforcing the law lies with the police. The Council says it will not install any barriers because of safety concerns for users of the bridleway.

Analysis

  1. Mrs X presented this complaint as being about whether the track beside her house is recognised as a bridleway or not. In fact, the Council is clear it has known it is a bridleway all along. Therefore, the complaint actually turns on whether the Council had the legal right to allow vehicles to use the bridleway to access its car park.
  2. Having read the correspondence between Mrs X and the Council, I asked to see the legal advice it received. The Council shared this with the Ombudsman but, because it is legally privileged and the Council is still relying on it, I cannot refer to it directly here.
  3. I am not unsympathetic to the view put forward by the Council that it is now trying to balance Mrs X’s rights with those of the public who want to use the car park. Representations made for the CLUD application show the facility is popular and considered an asset by those who used it, and they want it to be opened again. However, this difficult situation largely appears to be one of the Council’s own making. It is my conclusion the Council could have resolved this some years ago but instead, it failed to check the legal position until the recent chain of events that started when it was challenged by Mrs X’s husband refusing to open the gate.
  4. Although I am satisfied it was an honestly held belief, the Council clearly assumed it had the right to act as it did but never actually checked. Then when it did check it turned out to be wrong and as a result had to close the car park. I am bound to conclude this was fault. It should not have had to rely on the consistent complaints from Mrs X for the truth to be uncovered. Without the legal authority to do so, the Council had been actively encouraging vehicles to use the bridleway for years.
  5. This in turn led to Mrs X’s husband having to open and shut a gate every day from late 2012 until 2017, to prevent nuisance caused by vehicles which should, by rights, not have been using the bridleway in the first place. Although this was something he agreed, he would only have done so because it seemed to be the only option. If the Council had clarified the legal status of the bridleway in 2012, and realised there was no right for vehicles to use it, I doubt Mrs X’s husband would ever have had to attend to the gate. It is reasonable to assume, given the choice between taking responsibility for the gate or the Council closing the car park while it regularised the legal position, Mrs X’s husband would have chosen the latter. This was fault by the Council and the injustice caused to Mrs X’s husband in having to open and shut its gate is clear.
  6. The legal advice obtained by the Council gave it options about whether to close the car park or not. Eventually, the Monitoring Officer directed it to close, but only after further legal discussion and complaints from Mrs X. She has shown me evidence of an email sent by the local police to her, in which in early December 2017 the Council told the police it had ‘no intention’ of closing the car park. Yet it did just a few weeks later.
  7. This is symptomatic of the muddled approach the Council has taken in this case. Even from the correspondence I have seen, which dates from July 2017, I can see examples of officers making commitments to Mrs X only to quickly change their position. In particular, bollards were twice offered as a solution but then withdrawn. Mrs X was recently told a gate would be installed within two weeks, only for the Council to then reverse that decision because the person who agreed it was not aware of its legal advice and overall course of action.
  8. I would also question the approach taken by the Council since it decided to seek legal advice. The correspondence I have seen suggests the Council saw Mrs X as an adversary, as often only the bare minimum of information was disclosed to her. Several emails talk about ‘options’ without ever trying to explain what they are. Even when Mrs X asked for an explanation the responses were often vague. I do not see why it could not have simply said it was getting legal advice and intended to follow it. That would have gone a long way to explaining how it was approaching the issue, without needing to go into specifics it did not want to disclose at that point for legal reasons.
  9. The Council has since met with Mrs X and explained it now intends to apply for a compulsory purchase order to resolve any legal uncertainty about whether cars can use the bridleway to access the car park. The car park will remain closed while it does this. Having seen the legal advice received by the Council, I am satisfied taking this approach is not fault as it is something it is entitled to do.
  10. I know Mrs X would want the Ombudsman to recommend the Council closes the whole bridleway to vehicles. However, the decision how to protect the bridleway and whether to place a barrier across the bridleway is one for the Council to take after a trained officer considers all the facts. In this case, the Council says it has concluded there would be a safety risk if it did so. It also says there is no legal duty on it to take that course of action because there is no gate on the definitive map. Also, it believes others have private vehicle access rights over it and it cannot act to block those by putting a barrier up.
  11. Although there has clearly been much confusion and some delay in reaching this point, I am satisfied the Council has now considered all the evidence available to it and has reached a decision it is entitled to reach. The Ombudsman cannot substitute the Council’s professional judgement for our own and so I will not find fault with this outcome.
  12. Having found fault and injustice caused to Mrs X by the Council I will recommend actions to remedy it.

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Agreed action

  1. Within one month of my final decision, the Council has agreed that the director for the service responsible for this matter will write to Mrs X and apologise for not seeking legal advice sooner, which directly contributed to Mr and Mrs X having to operate a gate at the entrance to its car park between 2012 and 2017.
  2. Within one month of my final decision, the Council has agreed to pay Mrs X the sum of £1250. This is made up of:
    • £200 per year for around five years spent opening and closing the Council’s gate on a daily basis, when the Council now concedes the gate would never have resolved the issue and I have concluded the legal status of the bridleway should have been regularised much sooner.
    • £250 for the distress caused to Mrs X by having to pursue her complaint, the inconvenience it has caused her and her time and trouble in trying to get clear information from the Council.
  3. The Council should write to the Ombudsman when it has completed these actions.

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Final decision

  1. There was fault in how the Council handled Mrs X’s complaints about the use of the bridleway. This fault stretches back several years and has caused Mrs X significant inconvenience. The Ombudsman has recommended how this should be remedied by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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