Summary: Mr X complains the County Council affected his property when it re-surfaced a right of way he uses to access his driveway. We found no fault in the Council’s actions.

The complaint

1. Mr X complains when the County Council arranged for the resurfacing of a right of way, it narrowed it and moved it closer to his property. He says this action was taken without the proper procedure to change the route of the right of way and it caused him difficulties accessing his property. He also complained an area of his own land (immediately in front of his driveway) was re-surfaced by the Council’s contractor, removing a flood defence he had built.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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

4. I spoke to Mr X and considered the information he provided. I asked the Council for information and I considered its response to the complaint.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Background

6. The entrance to Mr X’s driveway is down a lane which is a designated right of way. Mr X says for years the lane has been around four metres wide. He says a watercourse/drainage channel runs down the opposite side of the lane to his home. Mr X has suffered flooding issues caused by water running down the lane and into his property.
7. Mr X says the County Council arranged for the resurfacing of the lane. When it did the work it narrowed it and moved it closer to his property. It did this without the proper procedure to change the route of the right of way. He also asked why the Council had only surfaced the lane to width of 2.7m in front of his property, when it was wider elsewhere. He felt, in effect, it had been moved nearer to his property.
8. Mr X also complained an area of his own land (immediately in front of his driveway) was re-surfaced by the Council’s contractor, removing a flood defence he had built. He provided evidence his driveway entrance was slightly higher than the footpath before the resurfacing.
9. The Council stated the lane had not been diverted and the contractor had tarmacked what was already surfaced. It stated they had not moved the line of the path. The Council stated as 2.7m was the recorded width for the footpath, and that was provided, it had no grounds to carry out more works.

The designation of the Right of Way (ROW)

10. The Council stated the lane in question was made a Right of Way (ROW) in 2009. The footpath was added as part of a number of paths that were in common use by members of the public “as of right”, but before 2009 were not officially designated as ROWs.
11. Although the full width of the lane, and as it may appear on Ordinance Survey maps may be around 4 metres, this full width was not all designated as a ROW in 2009. The Council explained it would only designate the actual footprint used by the public as a ROW. In this case it found the width used by the public was a maximum of 2.7m wide, so this was what the Council made a ROW.
12. When it intends to designate footpaths as a Right of Way, the Council publicises its intentions via an Order. The Council says no objections were made. Once a ROW is designated it is recorded in a definitive map and definitive statement. This describes the features and extent of ROWs. The entry for the footpath in question describes its location and goes on to state that it has a width of between 1.2m and 2.7m. It is 2.7m in the area around Mr X’s property.
13. After the Council designated the lane as a ROW, the element that is a ROW became publicly maintainable. This does not mean it is publicly owned.

Resurfacing Works

14. The Council told us when it decided to re-surface the lane, it had considered the impact on drainage.
15. The Council provided details of the work it commissioned and carried out to the lane. This included the need to retain a drainage channel to one side and to clear debris to ensure it worked. The contractor’s quote shows they intended to grade the surface to aid surface water drainage and to carry out this work.
16. The Council stated the contractor did not surface anything that was not already tarmacked and there were no changes to the levels outside Mr X’s property. It stated care was taken to camber the lane further down the lane, to ensure water flowed down the other side of the lane (where there is a drainage channel). The stone drainage strip was provided along the other side of the lane to take water run-off and act as a soakaway.
17. The Council initially stated it had inspected the works and nothing had changed to Mr X’s side of the lane other than the re-surfacing. The Council did not consider there would be an impact to water flowing along the lane as a result of the works.
18. The Council later considered evidence provided by Mr X during our investigation that indicated the level of the footpath had been raised slightly when the resurfacing was done., This made it approximately level with the edge of Mr X’s driveway entrance. The Council offered to pay for work to reinstate a ‘lip’ along the driveway entrance as Mr X had before the works.
19. Mr X also noted that vegetation growing in and around the drainage channel opposite his drive caused a nuisance when accessing his property. The Council stated because the vegetation was not encroaching on or obstructing the public footpath this would need to be addressed with the landowner. The Council noted that Mr X was raising flooding issues separately.

Analysis

20. Although the ownership of the lane is not clear, the Council’s resurfacing works were carried out as a result of its duty to maintain Rights of Way.
21. The first element of Mr X’s complaint is that the Council had in effect moved the right of way towards his property without following the proper diversion process. Having reviewed the available description of the ROW from the Council’s definitive map and statement, I do not consider the resurfacing works have led to a change in the route of the ROW. The description of the ROW is not so detailed as to define which part or side of the lane it is positioned. The provision of the 2.7m wide ROW along the lane meets the Council’s statutory duties.
22. There is evidence the Council had regard for the need for drainage and took account of the potential for flooding when carrying out the resurfacing. It stated its contractor had only surfaced the area that was already hard surfaced.
23. The Council stated they did not increase the levels outside Mr X’s property, and a camber had been built into the lane further up to direct flood water to the stone drainage channel on the other side of the lane. I am satisfied there is evidence the Council took account of the need for drainage and understood the potential flooding issue when the works were carried out. However, there was evidence the level of the path to the front of Mr X’s driveway was raised slightly. The Council has agreed to pay for the reinstatement of the “lip” along the driveway that Mr X had previously in response to this. This is appropriate.
24. Although I have not found fault in the County Council’s actions, it is open to Mr X to review what private rights of access he has, possibly documented in his property deeds. If Mr X’s private rights of access specify that he has a right to a wider and more extensive access than the ROW the Council has maintained, it may be open to him to take civil action against the landowner or others to restore this.
25. I have not found fault in the County Council’s actions concerning works to the ROW, but I have sympathy for Mr X’s circumstances and the impact that flood water coming down the lane has previously had on his property. I understand Mr X is pursuing actions to address the causes of the flooding separately.

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Final decision

26. I found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman