Derbyshire County Council (18 006 872)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 06 Sep 2019

The Ombudsman's final decision:

Summary: Mrs C says the Council failed to ensure a local footpath was free from obstructions and to prevent the use of dangerous machinery on it. The Council was at fault for delay and for refusing to process Mrs C’s notification of obstruction. This caused distress to Mrs C. The Council should process this notification and also complete the footpath diversion process to allow Mrs C’s objections to be heard.

The complaint

  1. The complainant, who I have called Mrs C, says that, for several years, the Council has:
      1. Refused to carry out its public duties and obligations to keep a local footpath free from obstructions; Failed to serve abatement notices or otherwise make people who have obstructed the footpath remove the obstructions;
      2. Used delay tactics to avoid clearing the footpath, including applying for diversion orders which were not implemented or supported by proper evidence;
      3. Allowed a local business to operate heavy machinery on the path, causing danger to Mrs C.
  2. Mrs C says she has suffered injustice in that she has not been able to walk the path and has spent a great deal of time fighting the Council. She says she wants damages and costs.

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What I have investigated

  1. I have not investigated the historical aspect of Mrs C’s complaint. The Ombudsman should not investigate complaints based on events occurring more than a year earlier without reason to do so. I have, however, explored historical events as background research.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. We cannot investigate late complaints unless there are good reasons to do so. A late complaint is one brought to us more than 12 months after the events complained of. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
  4. 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))
  5. 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 considered the information supplied by Ms C and the records made by colleagues at the Ombudsman. I wrote a letter to the Council requesting further information. I considered all the information I had and applied the relevant law.
  2. I sent my draft decision to Mrs C and the Council and invited their comments.

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What I found

  1. The procedure for diverting a public footpath is set out in s.119 Highways Act 1980. Where it seems to a council it is expedient to divert a footpath, because it is in the interests of the landowner or of the public, it may make a footpath diversion order. Diversion orders cannot alter the termination points of pathways.
  2. If the Council receives no objections, it can confirm the order unopposed. If it receives objections, it should pass the matter to the secretary of state to confirm.
  3. Owners, lessees and occupiers and members of the public may make applications for diversion orders or a local authority may decide to make such an order itself.
  4. Where it appears to a council that work is required to bring the new route to an acceptable standard, the council should set a date for works to be completed and not allow the diversion to take place until the work is done.
  5. The local authority must make orders in the prescribed way. Councils must post public notices of any proposed orders at the site and in a local newspaper providing the details of anyone who can be contacted. They must provide at least 28 days’ notice for public path orders.
  6. Those objecting must do so in writing by the closing date stated on the notice. They must state their reasons for doing so.

Obstruction of the highway

  1. The Highways Act 1980 sets out that action may be taken on obstruction where the obstruction is ‘continuing’. Vehicles crossing the highway, including footpaths are not, therefore, obstructions.

Notice to enforce duty regarding public paths

  1. S.130A highways Act 1980 says that, where a member of the public alleges a footpath is obstructed, they may serve a notice on the relevant council asking it to have the obstruction removed. The notice must include the name and address of any person who the applicant considers has caused the obstruction, if this is known. It should also include details of the site of the obstructions.
  2. Within one month of receiving such a notice, the highway authority must:
      1. serve notice on anyone named in the notice as responsible for the obstruction, and anyone else who may be responsible for the obstruction, notice that it has received a s.130A notice and stating what action it intends to take; and
      2. Serve a notice on the person who served the notice of obstruction stating the names of everyone it served with notices described in (a) above and stating what action it intends to take.
  3. If someone who serves a s.130A notice on their council is dissatisfied with its response, they can apply to the Magistrates Court for an order requiring the Council to take action to clear the obstruction.

The Removal of Obstructions from Highways (Notices etc.) (England) Regulations 2004

  1. The above-named regulations set out the procedure for serving a s.130(1) Notice on a council. They say that those serving notices on their council under this act should use a form ‘substantially to the same effect’ as the one set out in the schedule to the regulations.
  2. The guidance found in the schedule contains the following guidance;
    • ‘Because different procedures may apply to different obstructions, use one form for each obstruction’;
    • ‘describe the location of the highway and the obstruction. This should be detailed enough for the local highway authority to be able to locate them’.

What happened

Background

  1. A footpath which runs close to Mrs C’s house has been recognised by the Council for many years and is marked on the Council’s definitive map (‘the footpath’). Mrs C says she has made complaints about obstructions to it since about 1985.
  2. The diversion of the footpath of which Mrs C complains lasts for about 45m and goes around the edge of the earth embankment.
  3. The Council accepts the footpath was first obstructed in the late 1980s or early 1990s when a local business created an earth embankment which supported a carpark on its property. The Council believes the business had planning permission from the local planning authority (the district council) for this work.
  4. At the time of the works, an alternative route was provided around the edge of the embankment. The Council says that diversion was considered the most practical solution as clearing the embankment would have required substantial earthworks.
  5. In 1998, the then landowner sought a public path diversion order. The Council received an objection, it seems from Mrs C. It says it would have referred the matter back to committee for further consideration but the landowner, having agreed to pay to bring the new path into suitable condition, went into liquidation.
  6. In 2006, the new landowner applied for a diversion order which would have diverted the existing route that could have been used as a bridleway. Mrs C objected to it. This did not go ahead.
  7. In 2010, the landowner applied for a diversion order. The council intended to divert the path to run on a different route. It could then be used as a bridle path and leisure trail.
  8. Mrs C objected again. She said the landowner had no planning permission for the embankment and premises generally which obstructed the legal route of the footpath. She also objected to the legality of changes to the route more widely. She said the leisure trail would take many years to institute.

2016

  1. In 2016, the landowner again requested a diversion order to divert a length of the footpath approximately 220m long. The new route would be ‘an overall width of 3m with 2m to be suitably compacted throughout its length with stone material.’
  2. The Council received objections, including one from Mrs C who raised various objections. The matter was listed for hearing by the planning inspectorate in October 2017.
  3. In the period before the hearing, Mrs C continued to ask the Council to remove obstructions and, to make Freedom of Information Act requests. I do not intend to go into the details here. In November 2016, the Council wrote to Mrs C and told her that there were no recorded obstructions to the footpath.
  4. The Planning Inspectorate held a hearing in October 2017. After introductory business, the hearing was adjourned to allow a site visit.
  5. The Planning Inspectorate proposed reconvening in late February 2018. The Council notified Mrs C of the proposed time and place. The proposed site was in the local town less than three miles from Mrs C’s house. Mrs C said that this was unacceptable as it was not in her district.
  6. As it happened, the Council decided not to continue with its application to divert because the proposal would clash with the district council’s proposed local plan.
  7. The Council wrote to the Inspectorate to inform them. The Inspector hearing the application found, in the circumstances that it would not be expedient to confirm the order. Her judgment was made in March 2018.
  8. Mrs C applied to the Planning Inspectorate for a costs order. The Inspectorate awarded her her costs.

S.130A Notice

  1. On 1 November 2017, Mrs C sent a s.130A Highways Act 1980 notice to the Council. She asked it to remove obstructions to the footpath put there since 1985 including fencing, the embankment, engineering scrap and the padlocked gates.
  2. She named a local businessman as the person she held responsible and included a considerable amount of detail as to the position of the obstructions.
  3. The Council responded at the end of November refusing to consider her notice. It said it could not do so because:
      1. Each obstruction was not detailed on a separate form;
      2. The gate was not on the line of the footpath as shown on the map;
      3. She gave no location for the engineering scrap’.
  4. The Council went on to say ‘Whilst we are aware of the locations of the obstructions, with a formal process such as this [we] can respond only to what you have specified, without making assumptions’.
  5. The Council went on to say, ‘whilst I appreciate you are keen to have the footpath issue resolved, the serving of notices seems unlikely to achieve this at this time. Our response to any correctly served notice will be that we are dealing with them by means of an on-going diversion order. I am sure this would be accepted by the Magistrates’ court as a legitimate means of dealing with the obstructions if you chose to take it to that stage’.
  6. On 17 April 2018. Mrs C wrote to the Council making a formal complaint about the Council’s failure to deal with her representations about footpath obstructions or to process her Freedom of Information Act request.
  7. On 1 August 2018, Mrs C complained to the Ombudsman. The Ombudsman ascertained that the Council had not completed its corporate complaints process. We therefore requested that it should do so before we could investigate.
  8. In July, August and September 2018, Mrs C wrote again to the Council restating her complaint, accusing the Council of obstructing her and making a Freedom of Information request.
  9. On 9 October 2018, the Council provided a stage 2 complaint response. It said:
      1. The Council accepted that the path was obstructed. The original blockage was caused by an embankment. The Council decided that it was not practicable to remove it as this would cause a yard to subside. An alternative route had been provided for many years by the landowner;
      2. The footpath had become ‘progressively obstructed to the point that it is no longer available’. Therefore, the Council had engaged with the owner to provide an alternative route. The Council’s efforts to this end had been hampered by staff turnover. This was ‘regrettable but not acceptable’. In the meanwhile, the alternative route had been available.
      3. The Council had made four footpath diversion orders but the progress of these had been halted due to error. In the most recent case, it would have conflicted with the local district council’s local plan. The proposed diversion would have caused the path to cross a canal twice which would ‘not have been in the best interests of the canal restoration’.
      4. The Council had not taken action against the owners to restore the path because the alternative route was available. Had this not been the case, then it would have done so.
      5. The Council could not state that there was no established use or lawful development certificate for the land

Preliminary points

Out of time

  1. Mrs C says the footpath has been progressively obstructed over the past 35 years. She has had several clashes with the Council over the last decade. Most of this is beyond our remit as we should not consider events more than 12 months before the complaint is made only unless there is good reason to do so.
  2. However, the Council’s admitted delay in this case (see below) means we should look at some events that occurred more than 12 months before Mrs C came to the Ombudsman. I have decided to look as far back as 2016.

Matters of fact

  1. Two areas over which the Council and Mrs C disagree are these:
      1. Mrs C says the landowner developed the site illegally. The Council believes the district council gave him planning permission; and
      2. The Council does not believe the gates obstruct the legally prescribed route of the footpath. Mrs C says they do.
  2. This is a matter of fact that must be decided on the evidence. There is a conflict of evidence on both points. I cannot say who is right. When the Council deals with Mrs C’s application, it should determine the facts of the matter.

Was there fault causing injustice?

Refusal to keep footpath clear, serve abatement notices, etc and delay

  1. Mrs C believes that the Council’s failures in this case were deliberate. Overall, I accept the Council’s claim that its failures were accidental and caused by staff turnover. However, it did refuse to process her application for a s.130A notice in November 2017 using a technical argument to thwart should have been accepted as a valid application. This is set out in more detail below.

2016 footpath diversion order application

  1. It was the landowner who made the 2016 application for a diversion order. Mrs C objected and the Council then referred the matter to the Planning Inspectorate, as it was required to do.
  2. It then became clear, during the adjournment in the hearing of the application between November 2017 and February 2018 that the proposal was no longer viable. The Council notified the Planning Inspector who refused to confirm the order as it was not expedient. This was not the Council’s fault.
  3. In any event, having been heard by the Planning Inspectorate, this matter is beyond our jurisdiction.

Overall failure

  1. The Council accepts it delayed inexcusably in dealing with this matter and says this was because of staff turnover. I see no reason to doubt this. By now, it should either have taken action to reopen the original path or formally diverted the existing path to a new route. While most of this delay is beyond our remit, I agree with the Council that this delay was not acceptable. This was fault.
  2. I therefore proposed the Council should formulate a timetable to bring this matter to a conclusion within three months and should consider devising ways to ensure that it does not ‘drop the ball’ in future. The Council has accepted my recommendations.

Failure to process s.130A notice.

  1. In November 2017, the Council refused to process Mrs C’s s.130A notice of obstruction. It said this was because her application did not comply with the requirements of the Removal of Obstructions from Highways (Notices etc.) (England) Regulations 2004.
  2. It is true the guidance accompanying the form attached to these regulations says those objecting should notify councils of each obstruction on a different form. However, the justification for this was that ‘different procedures may apply to different obstructions’. That was not the case here. The same procedures applied to each of the obstructions.
  3. The Council also said Mrs C had provided insufficient detail to identify the obstructions. However, this was not the case. The guidance says the description ‘should be detailed enough for the local highway authority to be able to locate them’. The Council said in its letter, ‘we are aware of the locations of the obstructions’. Therefore, further identification was not necessary. This was fault.
  4. The Council also told Mrs C it was already dealing with the matter by means of ‘an ongoing diversion order’. In fact, more than 20 years after the first footpath diversion order, the matter is still not resolved.
  5. Nonetheless, it was open to Mrs C to take the matter to the Magistrate’s Court having received the Council’s response. She did not do so.

Use of machinery obstructing path

  1. Mrs C says that the Council should have prevented the use of heavy machinery on the route of the footpath. She cites the fact that the Council and the district council have policies to encourage leisure pursuits.
  2. I do not agree with Mrs C that the Council’s policies give it the right to prevent the landowner from traversing the route with his own equipment. Clearly, anyone using such equipment on the route would be obliged to use it safely, as they would anywhere else. But the presence of a footpath on land does not prevent the owner of the land from using it as they see fit providing they do not obstruct the footpath. A moving vehicle is not an obstruction.

Remedy

  1. Mrs C seeks damages. The Ombudsman does not award damages as a court does. Mrs C has already received costs of £5,000 in respect of the Planning Inspectorate application. So far as I can see, Mrs C completed the notices detailed in this complaint in her own handwriting and without legal assistance. There are, therefore, no fees to recompense her for.
  2. The Council has agreed a payment in recognition of the time she spent and the trouble she took in dealing with this matter.

Agreed action

  1. Within one month, the Council has agreed to:
      1. Apologise to Mrs C; and
      2. Pay her £250 in recognition of the time she has spent and the trouble she has gone to in pursuing the Council.
  2. Within three months, the Council says it will:
      1. decide how to bring this matter to a conclusion and inform Mrs C and the Ombudsman of a timetable for action; and
      2. Examine its processes to see how it can prevent staff turnover from causing similar failures in future.

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Final decision

  1. I have made my enquiries, received responses to them and have reached a decision on the available information that the council was at fault. I have proposed a remedy which the Council has agreed to implement. I have closed my investigation.

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Parts of the complaint that I did not investigate

  1. Mrs C says the Council’s fault has continued for many years. This is beyond our jurisdiction as are matters that have gone before the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman

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