Summary: Mrs X complains the Council made unjustifiable objections to an application to divert a bridleway then forced her into signing a legal agreement requiring her to pay for the maintenance. Mrs X signed the legal agreement in 2016, over three years before she complained to the Ombudsman. Her complaint is late and so falls outside the Ombudsman’s jurisdiction.

The complaint

1. Mrs X complains the Council made unjustifiable objections to an application to divert a bridleway and then forced her into signing a section 106 agreement and paying for the maintenance of the bridleway.
2. Mrs X says she has been required to pay maintenance costs for a bridleway that should be maintained by the public purse.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments before making my final decision.

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What I found

7. In 2013 Mrs X sought planning permission to build an agricultural building on her land. The District Council, as planning authority, considered the application and granted conditional approval.
8. In order to implement the planning permission, Mrs X had to divert a bridleway. She made an application to do this under section 257 of the Town and County Planning Act 1990. Mrs X says both the District Council and County Council, who had not raised objections in respect of the planning application, objected to the diversion of the bridleway.
9. Mrs X says the County Council raised issues that were not legitimate. She says the Council would not speak or correspond with her directly and so she had to employ a solicitor and a Public Right of Way (PROW) to act for her. She says this caused extra inconvenience and expense.
10. Mrs X found out she could submit the application directly to the Secretary of State to consider. Mrs X says she did this but still encountered problems with the Council. She says the Council said it would withdraw its objections to the diversion if agreed to sign a legal agreement known as a section 106 agreement. This would include a payment of £4,000 to cover maintenance of the diverted bridleway for 60 years and a £3,000 contingency to cover any unforeseen costs. This contingency would be returned in 2021 if not used.
11. In January 2016 Mrs X signed the agreement and paid the money which meant she was able to implement her planning permission and build the agricultural building. Mrs X says she later felt uneasy about the legal agreement and was unhappy she was paying the full maintenance costs for the bridleway. In 2017 she started the complaints procedure and she received a final response from a councillor in January 2018. Mrs X complained to the Ombudsman in February 2019.

Analysis

12. The 1974 Local Government Act states the Ombudsman will not normally consider a complaint unless it is brought to him within 12 months of the person first becoming aware that something had happened which affected them. The Ombudsman has the discretion to accept a late complaint if he considers there is good reason to do so.
13. The information provided by Mrs X in this case shows she signed the section 106 legal agreement and made the necessary payment by January 2016, some three years before she complained to the Ombudsman. When we spoke, Mrs X told me that she became uneasy about the agreement and so started the formal complaints process in 2017.
14. Mrs X did not make her complaint to the Ombudsman within 12 months of becoming aware of the situation. She told me that she had suffered some health problems but I am not persuaded this explains why she waited over three years to complain or that this prevented her from bringing the complaint sooner. I have not seen any evidence which would persuade me discretion should be exercised to now investigate her complaint.
15. Even if I were to exercise discretion, I am not persuaded there is evidence of fault by the Council. Mrs X explained to me that she felt pressurised into signing the legal agreement and paying the money. Mrs X’s section 257 application was with the Secretary of State for consideration and it was open to her to allow that process to finish. The process could have involved a public inquiry and could have taken some time. While Mrs X may have felt under pressure, I am satisfied it was her decision to sign the agreement which meant she could go ahead and erect her building. I have not seen anything to suggest the Council forced Mrs X to sign the agreement and make the payment.
16. Part of the payment made by Mrs X includes £3,000 as a contingency which is refundable to Mrs X if not used by 2021. I would expect the Council to return this money or explain what the money has been used for. If Mrs X is unhappy with what happens at that time it is open to her to make a new complaint.

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Final decision

17. I do not intend to pursue the complaint as it falls outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman