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Pendle Borough Council (17 012 311)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 21 Dec 2017

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr B’s complaint the Council has restricted his right of access to open space land near his home by building a wall across the path of a bridge and infringing a right of way along a footpath available to the public for many years. It would be reasonable for Mr B to take court action or apply to the highways authority to assert any public rights he thinks exist, and there is not enough evidence of procedural fault causing Mr B injustice so an Ombudsman investigation is not warranted.

The complaint

  1. The complainant, whom I shall call Mr B, says the Council has restricted his right of access to open space land near his home by building a wall across the path of a bridge and infringing a right of way along a public footpath near it. He also complains the wall is not in keeping with the building materials used in the conservation area and the Council refuses to build a stile into the wall or to restore another nearby bridge to a safe condition for people to use.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I considered what Mr B said in his complaint, discussed it with him by telephone, referred to relevant maps and law, and gave Mr B an opportunity to comment on a draft before reaching a final decision.

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What I found

  1. Mr B lives in a village in the Council’s area which is a conservation area for Town and Country Planning purposes. A beck runs through a piece of amenity land owned by the Council near Mr B’s home, where there are two bridges. The Council decided, it says in consultation with local people, the Environment Agency, and the County Council as local highways authority, to build a wall across one of the bridges to improve flood defences. The Council accepts there is a public right of way along a stretch of unadopted road leading to the bridge it has blocked, but that does not mean the bridge itself is a public footpath. It accepts it blocked pedestrian access to the amenity land, but says it had to balance that against the need to improve flood defences.
  2. Mr B says the wall blocks a public right of way along a footpath and across the bridge, and he cannot access the amenity land using the other bridge because it is unsafe unless the weather is mild and dry, and is a slip hazard.
  3. Despite what Mr B says, the route along the bridges and through the amenity land is not shown on the County Council’s definitive map as a public footpath. So there is no defined public right of way. If Mr B wishes to assert there is one, it would be reasonable for him to do so through the courts or by making application to modify the definitive map. But the Ombudsman cannot decide there is a public right of way the Council has obstructed. Equally if Mr B thinks the Council has a duty to maintain the open bridge as part of a public ‘highway’ (which term includes footpaths and bridges) it would be reasonable for him to serve notice on the Council and apply to the magistrates’ court under section 56 of the Highways Act 1980.
  4. Mr B also claims there is a right of way because of a ‘prescriptive easement’. This term refers a right a land owner may claim over neighbouring land owned by someone else. The owner can apply to register a claimed right with the Land Registry or assert it through the courts, but it is not a way of creating a public right of way. Public right of way are shown on the definitive map maintained by highways authorities outside London, and it would be open to Mr B to apply to modify the definitive map if he thinks a public right of way exists over the relevant land. The Council says it will address the legal position on access, and the Ombudsman could achieve no more than that by investigating the matter.
  5. Mr B also complains the wall is built of new building stone rather than reclaimed local stone so it is not in keeping with the character of the conservation area. He wants the Council to install a stile in the stone wall to restore access but it has refused. The Council says building the wall amounted to permitted development so the materials were not controlled by planning law. Mr B disagrees because the wall is not a garden wall. As it runs along the boundary of a private garden and land it is unlikely the Ombudsman could adjudicate between the merits of the two opposing positions because he is not a planning expert. The Council has considered Mr B’s complaint but decided the wall is not so visible in its surroundings as to affect the character of the conservation area. Looking at maps and street views of the area it is unlikely the Ombudsman could question the merits of the Council’s decision on the point.
  6. Finally, therefore, the matter in the complaint is about the Council restricting access to amenity land it owns, in consultation with relevant bodies and for reasons it has explained clearly. It is unlikely the Ombudsman could decide the Council’s administration was at fault, and it is not open to him to question the merits of its decision themselves.

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Final decision

  1. The Ombudsman will not investigate Mr B’s complaint because it would be reasonable for him to take court action or apply to the highways authority to assert any public rights he thinks exist, and there is not enough evidence of procedural fault causing Mr B injustice so an Ombudsman investigation is not warranted.

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Investigator's decision on behalf of the Ombudsman

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