Decision : Closed after initial enquiries
Decision date : 21 Feb 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint about the reintroduction of a public footpath. This is because the complaint is late. Also, we have no jurisdiction to consider decisions taken by the Planning Inspector, and there is not enough evidence of fault by the Council. It is also reasonable for Mr X to use the alternative remedy that is available to him.
- The complainant, whom I shall call Mr X, complains about the Council’s decision to reintroduce a public footpath through his property.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- 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)
- 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))
- The Planning Inspector acts on behalf of the responsible Government minister.
- 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
- there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.
What I found
- Mr X says that in 2005, the Council said there might be an unused footpath running through his property. Mr X submitted objections. He says that in 2015, the Planning Inspector decided there was a footpath through Mr X’s property, and the likely route it followed. Mr X says he was not consulted about this decision.
- The Council now wants to reinstate the footpath. Mr X says further research is needed to “either support or contradict the conclusions reached by the Planning Inspectorate as to the exact location of the footpath.” Mr X is concerned the proposed location of the footpath will have an impact on the business he operates from his property. The Council has said it has no reason to doubt the Planning Inspector’s decision, and the time for challenging the decision has now expired. It has explained there is the option for Mr X to make an application under the Wildlife and Countryside Act to delete the right of way.
- The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem We look at each complaint individually and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are clear and compelling reasons to do so. I do not consider that to be the case here. The matter Mr X complains about dates to 2005, and I see no reason why he could not have complained about the Council’s actions much earlier. The exception at paragraph 3 applies to Mr X’s complaint.
- But even if Mr X’s complaint was not late, it would not be a matter for the Ombudsman. At the heart of the complaint is a decision taken by the Planning Inspector. We have no jurisdiction to consider such decisions - which can be challenged in court. If Mr X disagreed with the Inspector’s decision – he should have used this right.
- There is also not enough evidence of fault by the Council to warrant an investigation by the Ombudsman. The Council is implementing the Planning Inspector’s decision. While I know Mr X disagrees with what the Council is doing, that is not evidence of fault.
- The Ombudsman has no powers to overturn the Planning Inspector’s decision or say where a right of way does or does not exist. The Council has explained to Mr X there is an option to apply for modifications to the Definitive Map, including the deletion of a right of way. Only this option can give Mr X the outcome he wants. If Mr X takes this option, and is unhappy with the Council’s decision, he can appeal to the Planning Inspector. An investigation by the Ombudsman is not therefore appropriate.
- The Ombudsman will not investigate Mr X’s complaint. This is because the complaint is late, and we have no jurisdiction to consider decisions taken by the Planning Inspector. Also, there is not enough evidence of fault by the Council, and it is reasonable for Mr X to use the alternative remedy available to him.
Investigator's decision on behalf of the Ombudsman