Isle of Wight Council (18 000 347)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 03 Jul 2018

The Ombudsman's final decision:

Summary: The Ombudsman closed a complaint alleging the Council failed to remove two obstructions on a public footpath close to the complainant’s home because no worthwhile outcome is achievable through investigation of the complaint now.

The complaint

  1. Mr X says the Council failed to remove two obstructions on a public footpath close to his home. Mr X says the obstructions cause pedestrians to trespass on to his land with the consequence that his property has been damaged.

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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’. 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, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

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

  1. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
  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 cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)

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How I considered this complaint

  1. I considered the complaint and background correspondence provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

  1. Mr X says a footpath near his home is obstructed at two points; an eastern and western point. As a result, members of the public trespass on his land and cause damage to his property when trying to access the beach nearby. He complained to the Council but it failed to re-open the path.
  2. Mr X then served a Highways Act 1980 section 130 notice on the Council. The provisions under section 130A-D of the Act provide a mechanism by which the public can serve notice on a local authority to remove an obstruction after appropriate notice. It is then the local authority’s duty to enforce removal of the obstruction.
  3. But Mr X did not complete the section 130 process. He says the leader of the Council persuaded him not to complete the process and to give the Council an opportunity to resolve matters.
  4. At some point, Mr X applied for a definitive map modification order to have the route of the footpath changed. The Council rejected the application. Mr X lodged an appeal with the Secretary of State.
  5. The Council says it can take no further action until the appeal is decided. Mr X, on the other hand, says the appeal does not concern obstructions on the footpath and so the matter should now be considered by the Ombudsman.

Analysis

  1. Mr X’s complaint is potentially outside the Ombudsman’s jurisdiction. The section 130 process provides a statutory basis for challenging a council’s failure to remove an obstruction on a public right of way and so it reasonable to expect Mr X to use that statutory remedy.
  2. However, I cannot make a definitive judgement on the Ombudsman’s jurisdiction because such a judgement is intrinsically linked to the Secretary of State’s decision on Mr X’s appeal. The Council did not consider Mr X’s complaint/service request regarding the obstructions because it says its actions will be dictated by the Secretary of State’s decision. If the eventual decision leads the Council to remove the obstruction then Mr X will not require use of the section 130 remedy.
  3. If, on the other hand, the Council does not remove the obstruction following the conclusion of the Secretary of State’s deliberations then Mr X can make a complaint to the Council which could lead to a further complaint to the Ombudsman. It is at that stage that the Ombudsman will make a judgement on whether to accept Mr X’s complaint or refuse it for the jurisdictional reasons outlined in this statement.
  4. At this stage, I do not consider a worthwhile outcome is achievable for Mr X through an investigation by the Ombudsman. I have discontinued this investigation as a result.

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Final decision

  1. I closed this complaint because no worthwhile outcome can be achieved through further pursuit of the complaint at this stage.

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Investigator's decision on behalf of the Ombudsman

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