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Ashford Borough Council (19 010 743)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 29 Nov 2019

The Ombudsman's final decision:

Summary: Mrs X complains that the Council failed to divert a footpath on her land prior to her purchase of her property. The Ombudsman will not investigate this complaint because it would not be reasonable to carry out an investigation given the time lapsed. The complainant could also, reasonably, have avoided the problem by land search enquiries.

The complaint

  1. Mrs X complains that the Council failed to divert a footpath on her land prior to her purchase of her property.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I considered the complainant's and Council's comments. The complainant has been given the opportunity to comment before a final decision has been made.

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What I found

  1. Mrs X says that, following her planning application for an extension to her property, she discovered that a right of way lay across her land which would restrict any development.
  2. She says that the Council should have enforced a requirement of the planning permission that the developer divert the footpath.
  3. The planning permission was granted in 1985. The Council cannot now enforce the planning permission regarding the footpath. Whilst Mrs X only recently discovered the footpath problem, we must consider whether it would be realistic to investigate a complaint about an alleged failure of the Council 34 years ago.
  4. Bearing in mind the likely lack of all planning documents and the absence of Planning Officers who can account for their actions at that time, I do not consider that any satisfactory conclusion could be reached were we to investigate.
  5. The Ombudsman considers that any issues about the use and status of land should be clarified prior to any purchase of that land. I appreciate that footpath enquires were not part of the standard enquiry letter used in land searches at the time, but, nevertheless, a mechanism existed for clarifying any such matters prior to purchase and I see no reason why such a search enquiry could not be made.

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Final decision

  1. The Ombudsman will not investigate this complaint because of the difficulty of carrying out such an investigation and the availability of land searches at the time of purchase.

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Investigator's decision on behalf of the Ombudsman

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