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Essex County Council (19 006 767)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 20 Jan 2020

The Ombudsman's final decision:

Summary: The Council failed to act on Mr X’s report of oilseed rape obstructing a footpath which he regularly used. The Council agreed to apologise and pay Mr X £100 in recognition of the inconvenience and avoidable time and trouble he was caused in pursuing his concerns about the path. The Council also agreed to review and implement changes to its rights of way inspection service to ensure it complies with its legal duties about cropping and ploughing cross field public rights of way.

The complaint

  1. Mr X says the Council failed to act to ensure walkers could use a public footpath that was obstructed by a crop of oilseed rape and then ploughed but not reinstated. The footpath is near Mr X’s home and he has been prevented from using it since May 2019. Mr X wants the Council to comply with its statutory duty and ensure the path is available for walkers.

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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 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)
  2. 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. I have:
  • considered Mr X’s written complaint and supporting papers;
  • talked to Mr X about the complaint;
  • asked for the Council’s comments on the complaint and considered its response and supporting papers;
  • shared the Council’s comments and supporting papers with Mr X; and
  • shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

  1. The law places a duty on councils that are local highway authorities to assert and protect peoples’ rights to use and enjoy public highways, including footpaths. Local highway authorities must also prevent, as far as possible, the obstruction of public highways. Government guidance in the ‘Rights of Way Circular 1/09’ says:

“The public are entitled to expect that all rights of way will be kept open and available for use. It is important that authorities act quickly to investigate any complaint made to them. Authorities should ensure that any obstructions they discover or have reported to them are removed as soon as is reasonably practicable.”

  1. Footpaths may cross agricultural land. The law says people should try to avoid ploughing the surface of footpaths that cross fields. But, if they need to do so, they must restore the surface of the path within 14 days. And, if people then plant crops in the field, the law says they must ensure the crop does not encroach on the footpath making it inconvenient for walkers to use the path. If people fail either to restore a ploughed path or clear crops obstructing a path, it is a criminal offence.
  2. Local highway authorities have a duty to enforce the laws about ploughing of and crops encroaching on public paths, which may include court action. They also have powers to enter land and reinstate ploughed paths and clear obstructing crops if the occupier fails to do so.
  3. Essex County Council is a local highway authority. It has a ‘public rights of way enforcement concordat’ that sets out its commitment to enforcing rights of way (‘the Concordat’). The Concordat refers to the Council’s legal duties and says it will use its legal powers but usually aims to resolve problems informally without court action. The Concordat explains how it will rank cases, for example, towards reducing risk and preventing deterioration of the rights of way network. On obstructions and encroachments, the Concordat says the Council will normally give people time to remove an obstruction. If the obstruction remains, the Council may then issue a formal notice for removal. If that is unsuccessful, the Council will remove the obstruction and or take court action.

What happened

  1. In May 2019, Mr X told the Council oilseed rape was obstructing a footpath near his home. The Council’s website gave 28 days as its response time for investigating reports of problems with public highways. After 45 days and with no changes made to the path, Mr X complained to the Council about its failure to deal with the obstruction.
  2. The Council replied saying it was fixing its website, which it knew gave wrong information about responding to rights of way problems within 28 days. The Council said the 28 days applied to problems with roads. (The website now gives eight weeks for responding to rights of way problems.) The Council apologised for giving wrong information and for not yet inspecting the footpath. The Council said once its officer had inspected the footpath, it would liaise with the landowner to clear the path and prevent future obstructions. The Council apologised for any inconvenience caused to Mr X and hoped the footpath would be cleared soon once the crop was harvested. The Council signposted Mr X to the Ombudsman if dissatisfied with its response.
  3. Mr X brought his complaint to the Ombudsman. Mr X said the crop had been harvested but the field had been ploughed and not reinstated. So, the footpath remained unavailable for use.
  4. In responding to the Ombudsman, the Council said it passed ‘ad hoc’ reports to its public rights of way inspector for the relevant area. The inspector would first give the landowner 14 days to make a footpath available before making a second inspection. If the footpath remained unavailable, it would write again giving the owner seven days to reinstate the path. If the path was not reinstated after the second letter, it then referred the case to an enforcement officer for action under the Concordat.
  5. The Council said when it received Mr X’s report of a footpath problem it did not have a rights of way inspector for that area. So, the Council gave Mr X’s case as added work to a rights of way engineer. The engineer had to prioritise safety inspections. In practice, this meant it took no action in response to Mr X’s report.
  6. The Council said it had since decided to divide the areas, for which it had no rights way inspectors, among its remaining inspectors. And, it was considering whether to remove urban footpaths from its rights of way inspectors and deal with them as part of its road inspections. If its road inspection officers inspected such paths, this would affect the work of its rights of way inspectors. The Council said it would need to review the area covered by each right of way inspector to ensure work was fairly and evenly spread between them.

Consideration

  1. The Council has legal duties to assert and protect public rights of way and specifically to enforce laws about paths affected by growing crops and ploughing. The Council admits it took no action in response to Mr X’s report of oilseed rape obstructing the path near his home nor to deal with the later ploughing of that path. I therefore find fault by the Council.
  2. The photographs now provided by the Council show footprints following a narrow line through a field, which has been sown with a new crop. This suggests people are exercising their right of way and walking across the field. This is probably because the path is on the edge of a built-up area and likely to be used by several people. However, the presence of a narrow route through the field does not absolve the Council from its failure to meet its legal duties. Neither does it address the injustice to Mr X arising from the Council’s failure to act when he first reported oilseed rape obstructing the path.
  3. I also find the Council’s response to Mr X’s complaint inadequate. Essentially, the Council’s response reflected its ‘no action’ position by ‘hoping’ the path would become available ‘soon’ once the oilseed rape was harvested. I therefore also find Mr X was put to avoidable time and trouble in bringing his complaint to the Ombudsman.
  4. The Council’s response to the Ombudsman suggests it has a broader problem with rights of way inspections and enforcement. I recognise the Council is considering changes to how it inspects rights of way that may improve its service. And yet, the Council gives no timeframe for deciding if and how it will make any changes. The Council also does not appear to be considering recruiting people to fill its vacant rights of way jobs. It is not for me to tell the Council how to organise and manage its services. However, to address the broader issues raised in this complaint, the Council needs to decide how it will provide a rights of way inspection service that meets its legal duties.

Agreed action

  1. To put right the injustice to Mr X arising from the fault I identified, the Council agreed, within 28 days of this decision statement, to:

- send Mr X a written apology for its failure to act; and

- pay Mr X £100 in recognition of his avoidable time and trouble in pursuing his concerns about the footpath.

  1. To address the wider issues raised by the complaint, the Council agreed, within three months of this decision statement, to review, decide and implement steps to ensure it can provide a rights of way inspection service that enables it to comply with its legal duties about cropped and ploughed cross field public rights of way.
  2. The Council also agreed to give the Ombudsman evidence of its compliance with paragraphs 19 and 20 of this statement. The Council will provide the evidence within 10 working days of completing the relevant action.

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Final decision

  1. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 19 to 21.

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Investigator's decision on behalf of the Ombudsman

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