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Cornwall Council (19 021 117)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 15 Dec 2020

The Ombudsman's final decision:

Summary: Mr X complains about the way the Council has dealt with issues relating to a public footpath that runs alongside part of his land. He says this has meant he has limited or no access to his field because of flooding, and he cannot mow his field. He says this also impacts on everyone who uses the footpath. The Ombudsman does not find the Council at fault. The Ombudsman has not investigated the part of Mr X’s complaint about the Council failing to take sufficient action to repair the damage to the surface of the footpath. This is because he can take this complaint to court.

The complaint

  1. The complainant, who I refer to here as Mr X, complains about the way the Council has dealt with issues relating to a farmer’s use of a public footpath that runs alongside part of his land. Mr X complains that the Council:
      1. decided to allow the farmer, subject to planning permission, to tear down an ancient hedgerow and traditional Cornish stone wall to install a gate, rather than reinstate a blocked drainage pipe;
      2. failed to consider his future concerns;
      3. failed to consider the farmer’s history of damaging the footpath by driving vehicles on it; and,
      4. failed to take sufficient action to repair the damage to the surface of the footpath.
  2. Mr X says this has meant he has limited or no access to his field because of flooding, and he cannot mow his field. He says this also impacts on everyone who uses the footpath.

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What I have investigated

  1. I have investigated parts a, b, and c of Mr X’s complaint. The final section of this statement contains my reason for not investigating part d of the complaint.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
  2. I considered the relevant legislation, set out below.

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What I found

What should have happened

  1. A Highway Authority (usually the council) has a common law duty to maintain the highway and “put the highway in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by physical condition”. The duty to maintain includes a duty to keep the highway free from flooding and provide adequate drainage.
  2. Though the term highway is popularly used to refer to roads, its legal definition covers any public road, track, or path.
  3. Section 100 of the Highways Act 1980 gives the Highway Authority the power to construct or lay, in the highway or land adjoining or lying near to the highway, such drains as they consider necessary for the purpose of draining or preventing surface water from flowing onto the highway. ‘Drain’ includes a ditch, gutter, watercourse, soak-away, bridge, culvert, tunnel, and pipe.
  4. If a member of the public is concerned that a council has failed to maintain a right of way to the required standard, they can ask the council to carry out the repair. If this is not done the person can ask the Magistrates Court to make an order requiring the council to do the work.

What happened

  1. Mr X owns a field. Between his house and his field is a footpath. This is how he accesses his field. A farmer owns a field that backs onto the footpath between Mr X’s house and his field.
  2. There was a drainage pipe between the footpath and the farmer’s field which allowed surface water from the footpath to drain onto the farmer’s field. This drainage pipe became blocked. This meant the footpath flooded in poor weather.
  3. In 2019, the Council considered how it would unblock the pipe. It found that the pipe was so blocked it was not possible to simply unblock it. The Council then met with the farmer to discuss how to resolve the problem. The farmer proposed that he install a gate in his hedgerow to allow natural drainage from the path onto his field. The Council agreed to this.
  4. At the end of 2019, Mr X complained to the Council about the blocked pipe and the farmer’s actions. He blamed the farmer for deliberately blocking the pipe. He disagreed that a gate would allow the water to dissipate.
  5. The Council told Mr X it was happy with the farmer’s proposal and said works would be carried out in spring 2020.
  6. In January 2020, the Council told Mr X there was no evidence the farmer had blocked the pipe. It said that the farmer had put forward an acceptable solution, so it felt further action was not necessary.
  7. Mr X formally complained to the Council.
  8. The Council said in the context of its overall responsibility for the network, and seeking to find solutions to ongoing issues, it took a pragmatic approach. It said its actions were proportionate and reasonable.
  9. Mr X asked that his complaint was dealt with at the second stage of the formal complaints procedure. He did not agree with the solution the Council had agreed with the farmer.
  10. The Council said in its response that its approach was reasonable and proportionate to resolve the issue. It said it would continue to work with the farmer to provide a more sustainable solution to the problem.
  11. Mr X then complained to the Ombudsman.

Analysis

Decision to allow the farmer to tear down a hedgerow and wall to install a gate

  1. Mr X complains that the Council decided to allow the farmer, subject to planning permission, to tear down an ancient hedgerow and traditional Cornish stone wall to install a gate, rather than reinstate a blocked drainage pipe (part a of the complaint).
  2. Mr X says the Council’s earlier decision – to replace the pipe – was correct, and the decision to allow the farmer to install a gate is wrong. He says the Council colluded with the farmer. He says the Council should have told the farmer to unblock the pipe.
  3. The Council says it initially thought the farmer’s proposal to install a gate was feasible. However, it says there would be nothing stopping the farmer from blocking his gate in future. This could mean the problem recurs. The Council says it has decided to replace the existing (blocked) drainage pipe because there needs to be a permanent suitable drainage point.
  4. The Council says it intends to install the new drainage point and then see whether any further works are required. It proposes to undertake the design and build of the proposed new drain over the next three months, barring unforeseen circumstances.
  5. The Council has a responsibility to make sure the path is usable. The Council discussed it with the farmer, which was appropriate given that the farmer owns the land onto which the path drains.
  6. I do not find fault with the Council for initially agreeing with the farmer that installing a gate would resolve the problem. This was a pragmatic approach which could have provided a solution to the problem.
  7. However, the Council has since reviewed its decision and decided to reinstall a permanent drainage point. It is entitled to make this decision. The Council has an appropriate timescale for the proposed works. This is positive.
  8. For these reasons, I do not find the Council at fault.
  9. The Council says it has no jurisdiction over the hedgerow that forms the boundary between the farmer’s field and the path. I agree. If the farmer wishes to install a gate, that is for him to decide as the landowner. This is likely to be subject to planning permission, which means the Council would be able to consider the proposal (to install a gate in an ancient hedgerow and traditional wall) on its own merits.

Failed to consider Mr X’s future concerns

  1. Mr X complains that the Council failed to consider his future concerns (part b of the complaint). His concerns are that the farmer’s installation of a gate will not work to drain the path. He believes the farmer will not maintain the gate.
  2. The Ombudsman cannot consider speculative complaints, meaning complaints about something that may or may not happen in future. Neither can the Council.
  3. I find that the Council has made appropriate plans to install a new drainage point. For this reason, I do not find the Council at fault.

Failed to consider the farmer’s behaviour

  1. Mr X complains that the Council failed to consider the farmer’s history of damaging the footpath by driving vehicles on it (part c of the complaint).
  2. The Council has certain duties and powers regarding its responsibility to make sure the path is usable. The Council does not have to consider a third party’s alleged behaviour in terms of damage or use. It is not relevant to the Council’s highways duties.
  3. In its email to Mr X in December 2019, the Council said if Mr X believes someone is using the path illegally (by driving a vehicle on it, for example), he should report it to police. It said, as a Highway Authority, it has no power to deal with such offences. I agree.
  4. I do not find the Council at fault.

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Final decision

  1. I have completed my investigation. I do not uphold parts a, b, or c of Mr X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

  1. Mr X complains that the Council failed to take sufficient action to repair the damage to the surface of the footpath (part d of the complaint).
  2. As I have said in paragraph 12, if a member of the public is concerned that a council has failed to maintain a right of way to the required standard, and has failed to carry out repairs, the person can ask the Magistrates Court to make an order requiring the council to do the work.
  3. As I have said in paragraph six, the law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court.
  4. I do not consider it unreasonable to expect Mr X to exercise his right and go to court if necessary. For this reason, I will not investigate this part of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman

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