Summary: Mrs X complained the Council increased the width of a public footpath that runs along the boundary of her home without consultation. The Council was not at fault for the way it widened the footpath. There was some fault in the way it dealt with a signpost but this has been put right.

The complaint

1. Mrs X complained the Council unreasonably and unlawfully increased the width of a public footpath that runs along the boundary of her property without any consultation with her. She also complained the Council placed a signpost for the footpath on her land, which it later removed causing damage to her property.

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The Ombudsman’s role and powers

2. 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’. 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)
3. 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)
4. 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)
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

6. I considered the information provided by Mrs X and the Council.
7. I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before making a final decision.

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What I found

Background

8. All county councils and unitary authorities in England must prepare and keep up-to-date a definitive map and statement, which shows all rights of way in its area and the nature of the rights over the paths shown.
9. To record a change to the definitive map it is necessary to apply for a Definitive Map Modification Order (DMMO).
10. The Council is under a duty to prevent, as far as possible, the stopping up or obstruction of the highways for which they are responsible. Members of the public have the right to serve a notice on the council requiring it to clear an obstruction. If it fails to do so, they can ask the Magistrates Court to do so. Highways Act 1980 section 130
11. Government guidance says highway authorities (in this case the Council) should keep the surface of public rights of way which it maintains in a fit state for public use and make sure obstructions are removed:

https://www.gov.uk/guidance/public-rights-of-way-local-authority-responsibilities

12. Schedule 12A of the Highways Act 1980 says the minimum width for a footpath is 1 metre if it is not a field-edge path or 1.5 metres if it is a field-edge path. It says the maximum width is 1.8 metres. Planning Inspectorate guidance suggests this Schedule applies to reinstatement of paths (see paragraph 9):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/516940/public_advice_note_16_Widths_6th_revision_April_2016.pdf

13. The Council’s policy says where there is no recorded width for a footpath on the definitive map it will maintain the footpath to a minimum of two metres where practicable.
14. Councils may divert the route of a footpath by making an Order under section 119(1) of the Highways Act 1980 in certain circumstances. The council must publicise the order and if it is opposed it must submit the proposed order to the Planning Inspectorate for a decision.

What happened

15. A public footpath runs near Mrs X’s property, which Mrs X says was historically about three feet wide. The legal route of the footpath runs through school grounds but the school agreed with an adjacent landowner for a permissive path across his land so the public did not walk across school land.
16. Mrs X contacted the Council about the maintenance of the footpath in March 2015. The Council confirmed the school should not block the footpath. It said it was only responsible for the surface of the footpath: the school was responsible for keeping the footpath clear of vegetation on its boundary.
17. A Council officer inspected the path in early May and emailed Mrs X to say:
• the section between her property and the school was satisfactory;
• the section of path across the school grounds was blocked and it was hoped this would be addressed by the school or the footpath legally diverted; and
• signage could be improved but people were clearly using the permissive path.

It appears Mrs X did not meet the officer since she replied saying it was a pity the officer had not let her know when she was visiting or call at the house.

18. Mrs X says she met the Council officer in June 2015 and made her aware of her concerns, and also the fact Mrs X had planted saplings in the disputed area. I have seen no record of a meeting in June 2015.
19. In October 2015 the school proposed legally changing the route of the footpath so it followed the line of the permissive footpath. Mrs X told the Council she had no objection in principle to the re-routing but was worried about how the footpath would be maintained. She said she had, with the permission of the landowner, planted some saplings at one side of the footpath to deter people dumping rubbish. The Council advised her she should consult with it before planting hedges or installing a fence next to a public footpath. It said the minimum width for footpaths which were previously open was two metres.
20. In a further email, the Council said there was no recorded width for the footpath in question and the Council’s policy in such cases was to maintain a minimum two metres. It explained that to formally record a width someone would need to apply for Definitive Map Modification Order (DMMO) but that would involve a large amount of work gathering evidence. It said the only widths that are legislated for are where a footpath has been interfered with, such as by ploughing, and need reinstating.
21. Mrs X says she did not pursue the matter further at that point because she assumed no action would be taken until an application was made for the footpath to be diverted.
22. The Council’s contractor widened the footpath in June 2018. Mrs X told the Council she was unhappy it occurred without consultation. She said the wider footpath might make it easier for a walker to access her garden by mistake. A Council officer visited the site and discussed the situation with Mrs X. Mrs X confirmed her understanding of the Council’s position by email. In addition to the issues raised before about the width and maintenance of the footpath, Mrs X said a signpost for the footpath overhung onto her land. Over time the sign would become obscured by vegetation on her land and she was not willing to desecrate her trees to ensure the sign was visible.
23. The Council confirmed its position in July 2018. It said:
• its policy was to maintain footpaths to two metres if there was sufficient width available to do so;
• the officer had discussed Mrs X’s suggestion of tapering the footpath but decided against it as it might cause other problems, for example, if the landowner wanted to erect a fence;
• not all footpaths are that width because some are not the Council’s responsibility;
• the post for the sign had been in position for some years but accepted the direction sign did point over Mrs X’s land. If Mrs X does not want vegetation cutting back it would arrange to move the post.

Council records showed there was some doubt about the ownership of the strip of land immediately in front of Mrs X’s property so it was unclear whether the signpost was on Mrs X’s land or publicly owned land.

Its records show it wrote to the school to say that it should either apply for a legal change of route or keep the footpath open.

24. Mrs X made a formal complaint in August 2018. The Council responded that:
• it understood the school would apply for a legal change to the route of the footpath but it had not taken enforcement action to ensure the school kept the original path open because there was an alternative route for walkers to use;
• there was no recorded width for the footpath so it had maintained it at two metres according to its policy;
• vegetation on the school’s side of the footpath was not its responsibility;
• the signpost was in an appropriate position but the new directional element did overhang Mrs X’s land and it had offered to move the sign.
25. Mrs X was unhappy with the response. The Council carried out an investigation of her concerns at stage 2 of its complaints process and sent her a detailed report of its findings. It repeated its apology for the damage to the saplings Mrs X had planted, it apologised for not responding to two emails and for an inappropriate comment in another email, and it said it would arrange for the sign to be moved. It said its actions to widen the footpath were reasonable and not unlawful. It said it would ensure the school maintained its boundary until the footpath was changed.
26. The Council told Mrs X in October 2018 that it had asked a contractor to move the signpost and it estimated it would do so in two weeks. The contractor did not move the signpost until December 2018. Mrs X says the Council did not ask her for permission to access her land for this work. She also says the contractor left a large hole, which she had to fill when the contractor had not returned to do so within a few weeks.
27. Mrs X remained unhappy because she says the Council did not accept it made a mistake when it widened the footpath nor agree a pragmatic solution with her. She says it wasted taxpayers’ money arguing with her.
28. In response to my enquiries the Council said there were no special circumstances relating to this footpath and therefore no justification for maintaining it at a lower standard than other footpaths in its area. It says if Mrs X wishes the width of the footpath to be formally recorded as three feet she would need to apply for a modification order so the Council can consider her evidence and apply the relevant legal test.
29. In response to my further enquiries it confirmed that local volunteers had agreed to make an application to legally divert the footpath so it runs along the route of the current permissive footpath. It has provided evidence that it wrote to the school telling it to maintain its boundary until the footpath is legally diverted and that it has inspected to ensure this is happening.

My findings

30. I am not required to determine whether the Council was correct to say Schedule 12A was not relevant to this situation. The courts have said the Ombudsman has no duty to determine questions of law. There may be maladministration without unlawfulness, and vice versa.
31. The fact there is no recorded width for this particular footpath is not in dispute. The Council therefore applied its usual policy about the width its contractor should clear. It was not at fault in doing so.
32. Even if it was at fault it is not clear this has caused a significant personal injustice. Mrs X says the wider footpath may mean the public access her land by mistake. It is the responsibility of the landowner to protect their boundaries. Therefore, if she is concerned about the public accessing her land, she could consider erecting fencing or signage to make the situation clear to those using the footpath.
33. When Mrs X raised concerns about the width in June 2018, an officer visited the site and discussed with colleagues whether the Council should take a different approach to this part of the footpath, such as tapering it. It decided that was not appropriate and explained its reasons. It considered this again when Mrs X formally complained and has explained there are no special circumstances that warrant a different approach to this part of the footpath. I am satisfied it considered Mrs X’s concerns when it decided it should apply its normal policy and it is not at fault for the way it did this. I cannot criticise a decision that was made without fault.
34. Mrs X wrote to the Council in July 2018 about the section of footpath that was blocked. The law says when someone serves a notice requesting the Council removes an obstruction from the highway, the Council should serve a notice of those responsible for the obstruction stating what, if any, action it proposes to take. It should also inform the complainant of who it has served notice on and what action it proposes to take.
35. The Council wrote to the school in July and again in August 2018 informing it that either the footpath should be opened up or it should apply to change the legal route of the footpath. It told Mrs X the school had indicated it would apply for the footpath to be diverted and it was not prioritising the matter for enforcement because there was an alternative route. The Council must consider whether enforcement is expedient. Where a council fails to remove an obstruction, a complainant can ask the Magistrates Court to order it to do so.
36. I note the post for the directional sign had been in place for some years and there was some doubt about whether it was on land owned by Mrs X or was public land. I cannot say who owns this piece of land as this is a legal question. I understand that a new directional sign was added to the post and this overlooked Mrs X’s land. The Council should not have placed the sign in such a way that meant Mrs X would have to cut back vegetation on her land to ensure the sign remained visible without having consulted her and gained her agreement. That was fault. That fault caused avoidable distress to Mrs X. The Council has already apologised for this.
37. The Council offered to move the signpost and it has now done so. I consider that was an appropriate remedy for the injustice caused by the fault. I do not consider the Council needed Mrs X’s permission to access the strip of land in front of her property to move the sign. It did not access a private garden. Further, it had told her it would move the sign and she had not objected to it. I do think it would have been better if the contractor had filled the hole left after moving the sign but I do not consider the failure to do so is sufficient to make a formal finding of administrative fault.
38. The Council has demonstrated it wrote to the school requiring it to maintain its boundary until the footpath was legally diverted and that it has inspected to ensure this is happening.
39. The Council has not yet received a formal application to legally change the route of the footpath. The Council does not need to take any action until it receives this.

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Final decision

40. I have completed my investigation. I have found fault leading to personal injustice but the Council has already taken action to remedy this.

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Investigator's decision on behalf of the Ombudsman