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Nottinghamshire County Council (18 008 423)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 12 Oct 2018

The Ombudsman's final decision:

Summary: The Ombudsman does not have grounds to investigate this complaint about the Council’s refusal to accept an application to extinguish a public right of way. This is because there is no sign of fault in the way the Council dealt with the matter.

The complaint

  1. The complainant, who I shall call Mr B, complained that the Council had unreasonably refused to accept his application to extinguish a public footpath on his land, or to refer the application to the courts for a decision. Mr B also said that, in doing so, the Council was failing to comply with a previous decision by the Ombudsman in his case.

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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 provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
  2. 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)

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How I considered this complaint

  1. I considered the information Mr B provided with his complaint, and his comments in response to a draft of this decision. I also took account of relevant legislation and guidance regarding the extinguishing of public footpaths.

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What I found

  1. Mr B bought his property in the 1990’s. There is a paved footway along the southern edge of Mr B’s garden, which borders the road which serves the housing development where he lives. The Council installed the footway in the 1980’s and adopted it as a public right of way.
  2. In the past few years Mr B discovered that the footpath was not included in the plans for the development which were granted planning permission in the 1980’s. In the circumstances Mr X said the Council had wrongly appropriated part of the land he owned for use as a public footpath and, as a result, the footpath and the extent of his property title had been misrepresented in Land Registry and other official documents.
  3. Mr B complained to the Ombudsman about this matter. But after an investigation we found no fault by the Council in Mr B’s case. In particular we concluded the Council had not taken Mr B’s land for the footpath as the land was still within his title boundary. We also found no fault by the Council for not taking enforcement about any breach of the original planning permission given that the footpath had been in use for 30 years.
  4. However we also noted that it was open to Mr B to apply to the Council for the extinguishment of the public right of way on his land, if he wished to do so.
  5. Following our decision on his complaint Mr B asked the Council to extinguish the public footpath. But the Council declined to do this, or to refer the matter to the magistrates’ court for a decision. Mr B then complained again to the Ombudsman.

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Analysis

  1. We have already investigated and decided Mr B’s complaint about the Council’s alleged misappropriation of his land and misrepresentation of official documents. Therefore I will not comment on these matters again.
  2. As regards Mr B’s new complaint, I consider we do not have grounds to start an investigation as there is no sign of fault by the Council.
  3. The Highways Act 1980 (“the Act”) provides for a landowner to apply to a council for a public path extinguishment order in relation to any footpath crossing their land. The council in question may then make an order if it appears expedient that the path should be stopped up on the basis it is not needed for public use.
  4. The Act also allows councils to apply to the magistrates’ court for an order to extinguish a public highway, although the Secretary of State has advised that councils generally should not use this power in respect of footpaths.
  5. In its response to Mr B’s application, the Council said it had considered the location of the footway in question but concluded that it was necessary to protect the safety of pedestrians.
  6. Mr B evidently disagrees with the Council’s view about this matter. However the Ombudsman may not question the merits of a council’s decision if there is no fault in the way that decision was made. In Mr B’s case I see no sign of fault in the process the Council followed in considering and deciding about his application.
  7. It is clear that the Council had considerable discretion under the relevant legislation about whether or not to proceed with a public path order or refer matters to the magistrates’ court. I consider the Council made a decision it was reasonably entitled to make in Mr B’s case in the circumstances.
  8. I also considered Mr B’s complaint that the Council had not complied with our decision about his previous complaint. But I am not convinced we would find grounds to fault the Council on that basis.
  9. In particular I do not see that our previous decision made any recommendations about action the Council was to take in Mr B’s case. Furthermore, our only reference to a public footpath extinguishment order was to say that it was open to Mr B to apply for one. We did not say how the Council should respond in that case and, in any event, we have no power to direct it to make an order.

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Final decision

  1. The Ombudsman does not have grounds to start an investigation of Mr B’s complaint about the Council’s refusal to accept his application to extinguish a public footpath on his land. This is because there is no sign of fault in the way the Council dealt with this matter.

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Investigator's decision on behalf of the Ombudsman

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