Portsmouth City Council (18 013 877)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 08 Apr 2019

The Ombudsman's final decision:

Summary: Mr D complained that the Council failed to raise a Definitive Map Modification Order (DMMO). I have concluded my investigation on the basis that there was no fault in the way the Council dealt with the DMMO, or in the way it dealt with Mr D’s complaint.

The complaint

  1. The Complainant, to whom I shall refer to as Mr D, complains that the Council failed to raise a Definitive Map Modification Order (DMMO), despite being directed to do so by the Planning Inspectorate. Mr D says that he was given unsatisfactory explanations as to why the raising of the order had been delayed. Mr D also said that attempts to raise the order had been made in 2014 and 2016.

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What I have investigated

  1. I have investigated the Council’s actions in relation the delay in raising the DMMO, and it’s handling of Mr D’s complaint.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because a complaint disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
  4. 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. As part of the investigation, I have:
    • considered the complaint and a document provided by Mr D; and
    • considered document provided by the Council, and
    • communicated with Mr D about his complaint.
  2. I also sent a draft version of this decision to both parties, and invited their comments.

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What I found

  1. Every County Council or Unitary Authority in England (except the inner London boroughs) has a legal obligation under the Wildlife & Countryside Act 1981, to prepare and keep up-to-date a “Definitive Map” showing every Right of Way (RoW) in an authority's area and the nature of the rights over the paths shown.
  2. To record a RoW on a Definitive Map, it is necessary to apply for DMMO. If an authority decides that a “reasonable allegation” can be made, it must make an Order to record the RoW. If no objections are received, it will then confirm the Order and record the RoW on the Definitive Map.
  3. There is no statutory timetable to submit an Order or refer an Order to the Secretary of State. However, a period of six weeks must be allowed for each statutory public consultation.

What happened

  1. Mr D has been petitioning for a RoW to be recorded. In 2014, the he submitted an application for the RoW to be introduced, which the Council refused.
  2. He applied again in 2016, which was again refused. He subsequently appealed to the Planning Inspectorate, who upheld the appeal. On 21 February 2018, the Planning Inspectorate directed the Council to raise a DMMO for the RoW to be recorded on the Definitive Map.
  3. In September 2018, Mr D complained to the Council that the DMMO had not yet been raised. He asked when the DMMO would be raised, and for an explanation for the delay.
  4. The Council said that the raising of the DMMO had been delayed because of legal deliberations over a wider issue, and that while it could not give a timescale as to when the order would be raised, it hoped it would be within a year of the Planning Inspectorate’s direction.
  5. Mr D progressed his complaint to stage 2 of its complaints procedure. He said that the Council had failed to provide a satisfactory explanation as to why the DMMO had been delayed.
  6. The Council said that it was unable to expand on the legal deliberations it referred to, because they were of a legally privileged nature, but that it was working hard to resolve the issues leading to the delay in raising the DMMO.
  7. Dissatisfied with the Council’s response, Mr D progressed his complaint to stage 3 of its complaints procedure. He said that he did not accept that legal deliberations should delay the raising of the order.
  8. The Council said that it was now able to explain to Mr D the reasons for the delay. It said that during the process of raising the DMMO it had come to light that the Definitive Map had been lost. The Council said that, as this was an unusual situation, it had taken advice, and concluded that in order to create a replacement map it had to start a period of consultation to identify what information the map should contain.
  9. The Council said that the period of consultation was due to finish before 21 February. It said that one of the reasons for this was to allow for the DMMO to be raised within a year of the Planning Inspectorate directing it to do so.
  10. During the investigation of this complaint, the Ombudsman contacted the Council. It said that the DMMO had now been raised, and provided a copy. It shows that the DMMO was raised on the 21 February 2019, which is one year from the date of direction from the Planning Inspectorate.

Analysis

  1. Mr D complained of an unreasonable delay in the Council raising a DMMO, and that the reasons it gave him for the delay were unsatisfactory.
  2. I have considered whether the way the Council dealt with these matters would constitute fault. It is clear the process has taken a long time, and I appreciate that this has caused Mr D some frustration.
  3. However, there are no statutory timescales for the Council to keep in processing a DMMO, apart from the six-week consultation period. Therefore, I need to consider if there was fault in the Council’s actions, which may have led to unnecessary delays.
  4. It seems that the Council faced an exceptional issue, in that the Definitive Map was lost and a new one needed to be created. When it became aware of this, it made the decision to enter a period of consultation to produce as accurate a map as possible. Although the Council did fail in its obligation to keep a definitive map, I do not consider it necessary to make a formal finding of fault regarding this, as it seems that the Council took significant steps to rectify this issue.
  5. The Council made the decision that it could not modify the Definitive Map until it had been created, and on this basis, could not raise a DMMO. This is an approach that the Council were entitled to make. As a result, I find no fault with this decision.
  6. Having considered the Council’s responses to Mr D’ complaint, it seems that it was considering its legal options, after it had identified that it had not been complying with its obligation to hold a Definitive Map. It therefore chose not to divulge this information until legal advice had been taken, and a suitable decision on how to rectify this could be agreed. Having considered the exceptional issue the Council faced, I consider this to be an approach the Council were entitled to make. I am therefore unable to find fault with this decision.

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Final decision

  1. I have completed my investigation, on the basis there is no fault in the Council’s actions.

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Parts of the complaint that I did not investigate

  1. I have nor investigated the matters relating to the previous applications to raise the DMMO that Mr D has made. This is because they took place more than 12 months ago, and I do not consider there to be reason to exercise discretion in this case. Furthermore, Mr D successfully appealed the 2016 application with the Planning Inspectorate, so we are unable to exercise discretion to investigate this.

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Investigator's decision on behalf of the Ombudsman

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