Summary: Mr X complains about the loss of access to playing fields from a public footpath. The Ombudsman finds the Council was at fault for not initially providing a suitable alternative access to the fields. The Ombudsman also finds fault with the Council’s complaint handing causing Mr X to contact the Ombudsman early. The Council has agreed to remedy the injustice caused.

The complaint

1. Mr X complains about the loss of access to playing fields from a public footpath as the result of a development. M X says the Council should have closed the footpath and opened a suitable alternative access point to the playing fields.

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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. 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

5. As part of this investigation I considered the complaint by Mr X and the Council’s responses at each stage. I considered the information provided by the Council. I sent a draft of this decision to Mr X and the Council and considered comments I received in response.

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What I found

Legislation

6. The Road Traffic Regulation Act 1984 gives a highways authority power to temporarily close a highway or footpath if works are to be carried out on or near the highway or footpath. If the closure is of a footpath the order to close shall not be for longer than six months from the date it comes into force.
7. The Town and Country Planning Act 1990 allows for councils to stop up or divert footpaths. The Council should be satisfied stopping up the footpath is necessary to enable development to be carried out in accordance with planning permission.
8. Should a council stop up a footpath it may provide for the creation of an alternative highway for use as a replacement for the one stopped up.

What happened

9. The Council granted planning permission in 2018 for the development of a school on playing fields near to where Mr X lives. When works started on the site the developers put up a fence around the site. Part of the fence ran alongside a public footpath. The Council temporarily closed the footpath next to the site, for six months, while works were carried out.
10. In June 2019 Mr X contacted the Council and said the fence prevented access from the footpath to the playing fields. He also said the description of the footpath on the Council’s temporary closure order was wrong. Mr X said the purpose of the footpath was to access the playing fields and the fence prevented this, so should be removed.
11. After receiving a reply Mr X sent further emails to the Council in July and August 2019. Mr X complained to the Ombudsman as the Council had not responded to his emails. The Ombudsman contacted the Council in September 2019 requesting it addressed Mr X’s concerns.
12. In October 2019 the Council provided a response to Mr X at stage one of its complaints procedure. The Council said it did not think the purpose of the footpath was to give access to the laying fields but to protect the land it encircles. The Council said it did not need to stop up the footpath and would be looking at providing alternative access to the playing fields from a nearby point further along the road. The Council apologised for not previously replying to Mr X and said it had put in place measures to prevent this from happening.
13. Mr X asked the Council to consider his complaint at stage two. He said the footpath is not circular and there is no evidence to show it was designed to protect the land it encircles. Mr X said he believed the Council should have stopped up the footpath and closed it permanently with alternative access to the playing fields put in place.
14. As part of the stage two investigation the Council met with Mr X at the site to discuss his concerns. The Council provided its stage two response to Mr X in January 2020, two days late.
15. The Council said it cannot determine whether the footpath was created to protect the land or to access the playing fields as there is insufficient evidence. The Council said as the footpath is a walkway and the fence does not obstruct the walkway but rather blocks access from the path to the fields. After taking legal advice the Council said there was no legal requirement for it to close the footpath.
16. The Council said in the planning application for the development of the school there was provision for alternative access to the fields which is further along the road running alongside the playing fields. The Council acknowledged there were concerns with the accessibility of this footpath and agreed to take steps to make this pathway safe.
17. Mr X remained dissatisfied and complained to the Ombudsman. Mr X said the fence prevents access onto the footpath from the fields so blocks the pathway. He felt the Council should have gone through the process of closing the footpath and registering an alternative route. Mr X also raised concerns about how his complaint was handled.

Analysis

18. Mr X feels the Council should have stopped up the footpath and registered a new path to access the fields as he says the purpose of the footpath was to provide access to the fields. The Council decided not to stop up the path but close it temporarily while works were taking place nearby. The Council said it has followed its legal advice and the footpath is still able to be used as the fence is only blocking access to the playing fields, not access along the footpath.
19. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Council’s officers. Instead, we focus on the process by which the decision was made.
20. While I understand Mr X disagrees with this decision this was a decision the Council was entitled to make. It came out to view the footpath and sought legal advice before deciding not to stop up the footpath.
21. The alternative access provided to the fields was not up to standard and was not carried out in line with the planning permission granted for the school. This is fault. As a result Mr X and other walkers would have found it more difficult to access the playing fields from the main road as access from the footpath had been blocked. The Council has recognised the alternative access it provided to the fields was not up to standard and agreed to make the alternative access pathway from the main road to the playing fields safe. This is a suitable remedy for the injustice caused.
22. When responding to Mr X’s complaint the Council agreed an extension to provide the stage two response. The Council provided the stage two response two days late. I do not think this is fault given the length of the delay and impact on Mr X. However, the Council may want to consider advising complainants even where there is going to be a short delay in responding to complaints.
23. There was fault in how the Council initially dealt with Mr X’s complaint. When Mr X contacted the Council he did not receive a response to his emails from July and August 2019. This caused him to complain to the Ombudsman. The Ombudsman had to contact the Council to request it responded to Mr X. Had the Council responded to Mr X’s emails it may well have been able to clarify its position to Mr X sooner and avoided him having to complain to the Ombudsman. I acknowledge the Council said it put in place measures to deal with correspondence when an officer goes on extended leave however, I feel a payment for time and trouble should be made to Mr X.

Agreed action

24. Within one month of my final decision the Council has agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Confirm the works to make the alternative access footpath safe have been completed.
• Pay Mr X £100 for time and trouble in bringing his complaint.
• Confirm what steps the Council has put in place to deal with correspondence for an employee on extended leave.

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Final decision

25. I have completed my investigation and found fault which caused Mr X injustice. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman