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North Yorkshire County Council (19 012 397)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 08 Jan 2020

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate this complaint about the Council’s defective reporting and document-handling which led to a decision to make a definitive map modification order regarding a public right of way in 2012. This is because the affected landowner can apply for another modification order and, if this is refused, can then appeal to the Secretary of State.

The complaint

  1. The complainant, who I shall call Ms B, complained that the Council’s decision to make a definitive map modification order (DMMO) in 2012 establishing a public right of way, part of which is on her land, was based on an erroneous report by one of its officers. As a result Ms B wanted the Council to now properly assess the evidence used in the report.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. In particular the law says we normally cannot investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))

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How I considered this complaint

  1. I considered the information Ms B provided in her complaint, and her comments in response to a draft of this decision.

What I found

  1. Councils must prepare and keep up-to-date definitive maps to show public rights of way in their area.
  2. The law sets out how people may apply to their council for a DMMO to have a public right of way recorded on, or deleted from, the definitive map.
  3. A few years ago Ms B bought some land which had the public right of way in question running across it. Ms B did clearance works on this route.
  4. But recently Ms B discovered documentation which she said showed that the officer’s report which led to the Council’s decision to make a DMMO for this right of way in 2012 was flawed. In particular Ms B said the Committee which made the decision was misled because the report to Committee misrepresented the evidence.
  5. Ms B complained to the Council about this matter. But the Council declined to review the report it wrote in 2012 as it felt there would be little to gain from doing so at that stage. However the Council also advised Ms B she could make a new application for a DMMO and it would then formally consider her claim that this right of way on her land may not exist.

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Analysis

  1. But I have decided that we should not investigate Ms B’s complaint.
  2. I have reached this view because the law already provides a way for Ms B to pursue the issue in her complaint. In addition, because this process ends with a right of appeal to a government minister, I consider we are restricted from investigating matters in her case. This is in view of the legal limitation on our jurisdiction which I refer to in paragraph 2.
  3. In particular, I note that if the Council refuses Ms B’s application for a DMMO she would then have a right of appeal to the Planning Inspector, who acts on behalf of the relevant Secretary of State in this respect. If the Planning Inspector upholds an appeal they can direct the Council to make the appropriate DMMO.
  4. I see no reason why Ms B should not be expected to use the process provided by law to resolve the issue in her case by way of an application for a DMMO and, if necessary, an appeal to the Planning Inspector.
  5. I also suggest applying for a DMMO would be potentially more advantageous for Ms B than if the Council just reviewed its report from 2012. In particular I understand that an informal review decision by the Council would not carry any statutory appeal rights.

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Final decision

  1. The Ombudsman will not investigate Ms B’s complaint that the Council’s report which led to its decision to make a DMMO for a public right of way on her land in 2012 was flawed. This is because the law already provides a suitable way for her to pursue the issues in her complaint which ends with a right of appeal to a government minister.

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Investigator's decision on behalf of the Ombudsman

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