Dorset Council (19 021 228)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 27 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complains that the Council says it will take over ten years to make a modification order about a footpath near her home. She says this is an unreasonable timescale. She says the footpath is blocked so she has to walk down a single-track road which is unsafe. The Ombudsman does not find the Council at fault.

The complaint

  1. The complainant, who I refer to here as Mrs X, complains that the Council has agreed to make a modification order about a footpath near her home, but it would take ten years. Mrs X says this is an unreasonable timescale.
  2. Mrs X says the path is blocked which means she has to walk down a single-track road instead which is unsafe. She says this blocked footpath formed part of a circle of footpaths around the village which is now broken.

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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)

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How I considered this complaint

  1. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

What should have happened

  1. Every County Council or Unitary Authority in England (except the inner London boroughs) has a legal obligation under the Wildlife & Countryside Act 1981 to prepare and keep up-to-date a ‘definitive map’ showing every right of way in an authority's area and the nature of the rights over the paths shown.
  2. To record a right of way on a definitive map, it is necessary to apply for Definitive Map Modification Order (DMMO).
  3. The law sets out how people may apply to their council for a DMMO to have a public right of way recorded on the definitive map. Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order. A decision to make an order needs evidence a right of way exists or is reasonably alleged to exist.
  4. If 12 months passes without a decision, the applicant may ask the Secretary of State to direct the council to decide the application. The Secretary of State’s direction may include a deadline for the council to make its decision.
  5. If a council decides not to make an order, the applicant has 28 days to appeal to the Secretary of State. On appeal, the Secretary of State will consider the evidence to decide if there is a case for making an order and, if so, direct the council to do so. The Secretary of State’s direction may include a deadline for the council to make the order.
  6. If a council makes an order, further legal steps follow, which may include the Secretary of State deciding whether to confirm the order if people have objected to it. A public inquiry may be necessary, and people asked about their use of claimed rights of way where there are inconsistencies in the evidence. (In practice, Planning Inspectors, independent of councils, usually act for the Secretary of State in dealing with DMMO applications, including issuing directions to councils.)
  7. There is no statutory timetable to submit an Order or refer an Order to the Secretary of State. However, a period of six weeks must be allowed for each statutory public consultation.

What happened

  1. There is a series of footpaths near Mrs X’s home that form a circle around the village she lives in. Part of one of these footpaths crosses private land and is blocked.
  2. In August 2019, Mrs X complained to the Council that there was no need for a Definitive Map Modification Order (DMMO) and that the footpath should be reinstated.
  3. In October, the Council responded to Mrs X’s complaint. It acknowledged that the recorded route of the footpath was recorded incorrectly on both the definitive map and the definitive statement. It said neither of those could be amended without going through the DMMO process, “which is where we are now”.
  4. The Council said it needed to follow due process which can take a number of years because of the legal issues involved. It said it was trying to find a practical and timely solution.
  5. In January 2020, the Council met with Mrs X, the Rights of Way liaison officer from the parish council, the parish council chair, and some local residents to discuss the issue.
  6. The outcome of this meeting was to create a permissive path around the boundary of the privately-owned land, subject to confirmation from the landowner. This solution was agreed by all parties. The Council agreed that it would work with the landowner and provide advice and costs for the proposed works.
  7. Mrs X complained to the Ombudsman that the Council said it would take more than ten years to make the DMMO, which she considered unreasonable.

Analysis

  1. The Council told Mrs X that the legal process involved in making a Definitive Map Modification Order (DMMO) may take some years to action. Mrs X says this is an unreasonable timeframe.
  2. The legal process, outlined above, is a lengthy one. The law does not set a time limit for councils to deal with DMMO applications but requires them to act “as soon as reasonably practicable”.
  3. In this case, I find that the process has not yet been ongoing for an unreasonable time. Mrs X’s complaint about the length of time it may take is speculative: it may or may not take some years to make the DMMO. I cannot find fault for a delay that has not yet taken place.
  4. Further, I find that the Council has mitigated the injustice to Mrs X and the wider public by finding a much quicker solution to the ultimate problem, which is the access. The Council is actively working to instate an alternative route while the DMMO process is ongoing. This is positive.
  5. I find that there is nothing further that the Ombudsman can achieve for Mrs X here.
  6. Mrs X says that a permissive footpath can be removed or extinguished, unlike a public right of way. Mrs X is correct: a permissive path is not a public right of way. It is a path, with signs, that says the landowner allows the public to use it. A permissive path does not have a statutory right of access.
  7. While Mrs X is right, I cannot find fault with the Council for suggesting this as a solution to the problem. The Council is currently working with the landowner to set up this permissive path.
  8. Mrs X ultimately wants the original footpath opened as she says it should be. This is not possible while the footpath officially runs across private land. The proper process to address this is through the DMMO process. As I have said above, this takes time. And during this time, Mrs X and others will be able to use the permissive path.

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Final decision

  1. I have completed my investigation. I do not uphold Mrs X’s complaint, because I find no fault.

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Investigator's decision on behalf of the Ombudsman

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