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Durham County Council (19 011 402)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 03 Dec 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has failed to protect his right of way over a footpath on which he likes to jog. The Ombudsman will not investigate the complaint because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

The complaint

  1. The complainant, who I refer to as Mr B, says the Council has failed to protect his right of way over a path on which he likes to jog and has failed to ensure the landowner has complied with his legal responsibilities.

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The Ombudsman’s role and powers

  1. 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)
  2. 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, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. In considering the complaint I reviewed the information provided by Mr B and the Council. I gave Mr B the opportunity to comment on my draft decision and considered what he said.

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What I found

  1. Mr B likes to run along a public footpath near his home which in part crosses over a field and along a field edge path. He says he has not been able to do so for a number of years because the field section of the path has been too overgrown.
  2. More recently, having become aware of the Highways Act 1980, legislation which sets out the Council’s regulatory powers in this area, Mr B made a formal complaint to the Council in April 2019. He complained that he could not use the overgrown foot path and that the Council was failing to take appropriate action against the landowner.
  3. The Council investigated the complaint and arranged for Rights of Way officers to visit the site and assess the condition of the path. Having done so it contacted the landowner who undertook took clearing work and it advised Mr B it was satisfied that the path’s condition had been sufficiently improved since Mr B had last complained and that it was in an adequate condition.
  4. The Council told Mr B it was aware of the relevant legislation relating to the ploughing and cropping of arable paths and that, while it accepted the path network was not perfect, it had to prioritise its resources and take the action it considered appropriate over what is a short section of path amongst a fairly extensive local network. This did not include work to rotovate and roll flat sections of the path as it viewed this to be a disproportionate response.
  5. At the second stage of its complaints procedure, the Council explained to Mr B that the Highways Act did not set out an absolute duty and that it allowed the Council to prioritise its response to reports of obstructions and to act proportionately. It set out the process it follows in this area and satisfied itself that Mr B’s concerns had been responded to and that appropriate works by the landowner had been secured. It concluded by finding no fault in the way the service had dealt with the matter.

Assessment

  1. I understand Mr B might not agree with the approach the Council has taken, and that he continues to find the state of the path to be unacceptable. However, the Council has properly addressed his concerns and taken the action it considers appropriate and proportionate, an approach it believes is in accordance with the legislation. The merits of decisions taken properly by councils are not open to review by the Ombudsman, no matter how strongly the complainant may disagree with them, and I do not consider there are grounds sufficient to warrant an investigation of Mr B’s complaint.
  2. Mr B is adamant the Council should be taking action against the landowner. However, the Council has explained the approach it takes and has said that it will be reinforcing its position in future correspondence with the landowner. It is for the Council to decide how to use its finite resources and it has already explained to Mr B that it will prioritise action depending on the importance of the right of way, with priority being given to those that are Council promoted.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because it is unlikely we can add to the investigation already carried out by the Council and an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman

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