Norfolk County Council (18 002 257)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 02 Oct 2018

The Ombudsman's final decision:

Summary: Mr and Mrs X complain the Council failed to take steps to enforce the reinstatement of a cross field footpath after the landowner ploughed it. The Council is not at fault. The Council inspected the footpath and decided it was already reinstated to an acceptable standard.

The complaint

  1. Mr and Mrs X complain the Council failed to take steps to enforce the reinstatement of a cross field footpath after the landowner ploughed it.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  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)

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How I considered this complaint

  1. I have considered the complaint and the information provided by Mr and Mrs X.
  2. I have considered the Council’s response to my enquiries.
  3. Mr and Mrs X and the Council have had opportunity to comment on my draft decision. I considered the comments from Mr and Mrs X and the Council before making my final decision.

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What I found

  1. The Rights of Way (ROW) Act 1990 sets out the rights of private citizens to use public rights of way (PROW), and the responsibilities of landowners and Highways Authorities (in this case the Council) to maintain them.
  2. The Highways Act 1980 places a duty on the Council as the Highways Authority to ensure the law is complied with.
  3. Section 134 of the ROW Act states where it is not practical for a landowner to avoid disturbing the surface of a PROW, by for example ploughing a field, then he or she must make good the surface of the path as to make it reasonably convenient to use.
  4. The Council has published guidance to farmers and landowners outlining their legal responsibilities for keeping PROW open and available after ploughing and cropping. It says following ploughing, within 14 days, landowners must ensure the path has a firm and even surface that is easy to use and ensure the path is the minimum width or wider.
  5. The Council’s guidance says PROW should be maintained to a standard appropriate to their location and use, therefore standards of maintenance between urban and rural paths will differ.
  6. 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

practicable.

What happened

  1. The Council’s records show it first received a report about the footpath which is a PROW on 27 December 2017. A Countryside Access Officer inspected the footpath twice in January 2018. The officer said the route and direction of the path was clear and it was reasonably passable.
  2. In February 2018, Mr and Mrs X complained separately to the Council about the condition of the footpath. Mr and Mrs X said the landowner ploughed the footpath which runs across a field in December 2017, and had then driven over it with a vehicle. They provided pictures of the footpath. These show a clear path across the field, and the surface appeared rough and separated by vehicle tyre tracks. Mr and Mrs X said they could not use the footpath because the surface was too rough and asked the Council to enforce its reinstatement. Mr X said he walked the path regularly and was prevented from doing so.
  3. The Council wrote to Mr and Mrs X in March 2018 and apologised for any inconvenience. The Council said it had inspected the footpath. It expressed disappointment at the vehicle tracks but said the route was passable and so not an enforcement priority. The Council provided Mr and Mrs X with alternative PROW and routes in the local area.
  4. Mr and Mrs X remained dissatisfied and wrote to the Council again in April 2018. The Council wrote back to Mr and Mrs X separately in May 2018. It said the Council was facing increasing demands and it therefore prioritises where it focuses its resources. It said its Countryside Access Officers use their professional judgement when inspecting PROW. It said the footpath subject to the complaint was not an unacceptable health and safety risk and neither was it obstructed to the extent that it was unpassable. It therefore said the footpath was a low priority and not a priority for enforcement.
  5. Mr and Mrs X remained dissatisfied and in May 2018 they complained to the Ombudsman. Mr and Mrs X said the Council failed to enforce reinstatement of the footpath until the farmer drilled the field in May 2018.

My findings

  1. The landowner ploughed the PROW at the start of December 2017. Mr and Mrs X said the PROW was unusable until the farmer drilled the field in May 2018. This is a period of approximately 6 months.
  2. The DEFRA guidance does not set any formal timescale for Councils to carry out enforcement action. The ROW Act states the surface of a PROW must be made good within 14 days after it has been disturbed (ploughed) to make it reasonably convenient to use. This is also stated in the Council’s published guidance.
  3. Mr and Mrs X did not find the condition of the footpath acceptable. However, it was useable and passable. Mr X’s photographs evidence this. While it may have been difficult for Mr and Mrs X to use, it was not impassable and it was not causing a serious health and safety risk to the public in general. There was also alternative PROW that Mr and Mrs X could have used if they had chosen to. The Council inspected the path twice in January 2018 and decided it had been reinstated to an acceptable standard. On this basis, the Council considered it was not an enforcement priority. Mr and Mrs X did not agree with the Council’s decision but as there was no fault in the process followed, I cannot question the decision reached. The Council is not at fault.

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Final decision

  1. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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