East Sussex County Council (17 014 511)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 27 Apr 2018

The Ombudsman's final decision:

Summary: Mr B complains the Council obstructed and delayed the process of establishing whether a passageway near a property he owns was a right of way (RoW). There was fault by the Council when it advertised a footpath modification order in June 2016. That did not cause significant injustice to Mr B. There was no other fault by the Council.

The complaint

  1. Mr B complains the Council obstructed and delayed the process of establishing whether a passageway near a property he owns was a right of way (RoW).
  2. He says the Council:
    • failed to provide him with information;
    • issued incorrect orders for the proposed modification;
    • unnecessarily referred the matter to the planning inspectorate;
    • officers of the Council and the Planning Inspectorate colluded to alter the extent of the claimed RoW; and,
    • did not explain the Council’s interpretation of the word ‘status’.
  3. He says that because of the blocking of the passageway he has lost one means of escape in the event of a fire from his property.

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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 investigate a complaint if someone has appealed to a government minister. A planning inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

  1. I considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments

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What I found

  1. The definitive map is a legal document which must be produced and kept up to date by the Council. It shows every right of way in the Council’s area and the nature of the rights over the paths shown. Recording a path on the definitive map is conclusive evidence that public rights exist over it. Rights may also exist over paths not shown on the map. A member of the public can ask for a Modification Order to the Definitive Map if they believe (and have supporting evidence) that a footpath or other right of way is shown on the wrong place on the map. This process can also be used to claim that an existing path should be on the map if it is not. The Council must publicise the order and if there are no objections from the public, it is confirmed and the right of way is added. If it is opposed the council must send the proposed order to the Planning Inspectorate for a decision.

What happened here  

  1. In 2010 locked gates were put up across a passageway near Mr B’s property which he used for access. This was not the only access to his property. Mr B applied to the Council for a Modification Order to the Definitive Map to establish the passageway as a RoW.
  2. The Council decided there was not enough evidence for a RoW. Mr B appealed to the Planning Inspectorate. The planning inspector decided, in March 2016, there was just enough evidence to suggest there may be a right so the order should be issued which would allow the matter to be tested. The inspector made some comments in his appeal decision about the extent of the passageway to which his decision related. Before the Council issued the modification order it asked the planning inspectorate to confirm the extent of the proposed RoW to which the order should relate. The inspectorate confirmed that it was the lower part of the proposed RoW.
  3. The Council issued the order. It has accepted there were errors with the order so it reissued it. There were objections to the order. This meant that a planning inspector had to consider whether the order should be confirmed.
  4. A different planning inspector considered the order in May 2017. He decided that it should not be confirmed.

Assessment

The extent of the RoW being considered

  1. At the heart of this complaint is Mr B’s wish to have the full length of the passageway confirmed as a public RoW. Mr B has been through the process to try to get the determination he wanted. The Ombudsman cannot consider the decisions made by the planning inspectorate or consider the Council’s conduct in the appeals. I can only look at those matters that are outside the appeal process.
  2. The key element of Mr B’s complaint is what happened after the first planning inspector’s decision. In short he considers it was wrong the Council proceeded with an order for the lower section of the proposed RoW only. He considers that had not been the planning inspector’s intention.
  3. The Council clarified this point with the planning inspectorate. The inspectorate confirmed it was the lower section only. The Council proceeded on that basis. I understand why Mr B considers this was wrong. The inspector’s decision is, in my view, ambiguous. But the Council sought clarification and acted on the information it received. There was no fault by the Council there.

Publication of the order

  1. The Council has accepted there was fault in how the order was first advertised in June 2016. I understand that was annoying for Mr B but I do not consider it a significant point and I do not consider it warrants any remedy.

Referral to the planning inspectorate

  1. Once there were objections to the order the Council had to refer it back to the planning inspectorate for a decision. Mr B questioned whether there were objections to the order but the Council has confirmed there were and provided copies. This meant the Council had to refer the matter back to the Planning Inspectorate for a decision.

Delay

  1. I explain in paragraph 21 below why I cannot consider the early events.
  2. In November 2015 the Council decided not to make an order. Mr B appealed. Once the inspector had decided the appeal in March 2016 the Council had to advertise the order which it did in June. As I say above there was an error in this and it was re-advertised in July. The error did cause some slight delay but, as I say above, I do not consider it to be significant. I do not consider there was any significant delay by the Council after November 2015.

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Final decision

  1. There was fault by the Council when it advertised a footpath modification order in June 2016. That did not cause significant injustice to the complainant. There was no other fault by the Council.

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Parts of the complaint that I did not investigate

  1. Mr B first approached the Council in 2010 about the passageway. In July 2012 the Council received from him a completed modification order application. As the Council had not dealt with the application within a year Mr B appealed to the planning inspectorate. The inspector accepted the Council’s approach of prioritising applications in chronological order. As this has been considered by the planning inspectorate I cannot consider this further.

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Investigator's decision on behalf of the Ombudsman

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