• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained the Council has followed the incorrect process in its attempt to change a bridleway into a byway open to all traffic to allow vehicles to access a Council owned car park. The Ombudsman will not investigate this complaint further. The Planning Inspector held a public inquiry into the Council’s decision to buy the land using compulsory purchase powers and the Ombudsman has no jurisdiction to consider matters already considered by the Planning Inspector. Mr X has also raised matters we have considered in a previous complaint and is disputing points of law which the courts are better placed to decide.

The complaint

1. Mr X complained the Council has followed the incorrect process in its attempt to change a bridleway into a byway open to all traffic to allow vehicles to access a Council owned car park.
2. Mr X lives on the bridleway and says the use of the park led to increased vandalism, nuisance and anti-social behaviour.

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The Ombudsman’s role and powers

3. 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 further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. The Planning Inspector acts on behalf of 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,

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How I considered this complaint

7. I have considered the information provided by Mr X in writing and on the telephone, which includes correspondence between him and the Council. I have considered the Council’s complaint responses and the relevant law and guidance.
8. I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered their comments in reaching a final decision.

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What I found

9. At common law, the freeholder of land can unilaterally dedicate a public right of way across their land. Where through express dedication at common law the freeholder of land dedicates a new, or upgrades, a right of way, there is a requirement at common law for there to be some evidence of public acceptance of the grant of this right for it to come into effect.
10. There are four categories of rights of way which are shown on a definitive map (which is a legal record of their existence). County councils and unitary authorities are obliged to keep a copy of the Definitive Map for their area and this determines what is a public right of way.
11. The categories are:
    • footpaths – only for people on foot
    • bridleways – for people on foot, on pedal cycles, on horseback or leading a horse
    • restricted byways – for people on foot, on horseback, leading a horse or in/on any vehicle which is not mechanically propelled
    • byways open to all traffic (BOAT)– as above but also including motor vehicles (but there must be evidence that the use is mainly on foot or horseback)
12. Under the Wildlife and Countryside Act 1981 the Council has a duty to keep the definitive map and statement under continuous review. Section 53 of the Act sets out the process for modifying the definitive map when necessary.
13. Compulsory purchase powers enable public bodies to acquire land compulsorily. Compulsory purchase of land requires approval of a confirming minister who can appoint an inspector to act on their behalf in relation to confirming the order. Under the Town and Country Planning Act s226 (1)(b) councils can use compulsory purchase powers to buy land ‘for a purpose where it is necessary to achieve in the interests of the proper planning of an area in which the land is situated.’
14. Where objections are made to a compulsory purchase order (CPO) the confirming minister can arrange a public local inquiry to be held or, if the objectors and acquiring authority agree to it, can arrange for the objections to be considered through written representations.
15. An acquiring authority can make a general vesting declaration which automatically vests title in the land with the acquiring authority on a certain date.

Background

16. A bridleway runs from the end of an adopted carriageway and for many years was used by the public to access a Council owned car park. Mr X lives near the bridleway and says he has suffered years of anti-social behaviour and nuisance from the car park.
17. The carriageway was shown on the definitive map as a bridleway however the Council believed there was a private right of way over the bridleway for access to the car park. In late 2017, Mrs X complained to the Ombudsman about the Council’s failure to prevent vehicles using the bridleway. The Council sought legal advice and established the public did not have a right to pass over the bridleway in motorised vehicles so in January 2018 the Council closed the car park.
18. We found the Council had delayed checking the legal position regarding the bridleway and provided vague responses to Mrs X. The Council told Mrs X it planned to apply for a compulsory purchase order to resolve any legal uncertainty about whether cars could use the bridleway to access the car park. In the meantime the car park remained closed. We were satisfied with that approach.

What happened

19. The Council sought to use its compulsory purchase powers to buy the land so it could establish a lawful vehicular access to the land. As a number of objections were received, in September 2019 the Planning Inspectorate held a public inquiry into the Council’s decision to compulsorily purchase the land.
20. In its submission the Council set out that if the CPO was confirmed it would exercise its common law right as the landowner to expressly dedicate the land as a vehicular public highway and specifically as a byway open to all traffic. It said ‘Once the public right of way has been created s53 of the Wildlife and Countryside Act 1981 requires the local authority to modify by order the definitive map and statement as is necessary’. It went on to explain that if an order is made under s53(3)(a) of the Act then the order takes effect on being made and does not allow for objections to be made.
21. It also said if the CPO was confirmed it would install a permanent CCTV unit at the car park to deter antisocial behaviour.
22. The Planning Inspector considered the views of objectors and the Council and decided to confirm the CPO.
23. In October 2019 Mr and Mrs X complained to the Council about the actions of a Council officer who they believe gave incorrect advice to the Council and to members of the public at a site meeting in 2017 which led the Council to pursue the compulsory purchase order. They also believed the officer failed to uphold the law on bridleways.
24. The Council responded in November 2019. It found no evidence the officer had misadvised the Council. The advice was always the route was a bridleway and it was possible for private vehicular rights to exist over a bridleway.
25. Mr and Mrs X remained unhappy. They complained the officer knew traffic was using the bridleway illegally and did nothing to stop it. The Council considered it had already addressed the issues and so it would not be beneficial to consider the complaint any further.
26. Mr and Mrs X wrote to the Council in December 2019 asking for confirmation of the action the Council intended to take. It responded in January 2020. It explained it intended to issue a general vesting declaration to take ownership of the land. It would then carry out improvement works and would then dedicate a new vehicular right, under common law, for all members of the public to access the car park. It would then make a modification order to the definitive map which would become effective immediately and it would not require consultation.
27. In February 2020 the Council served a general vesting declaration to take effect from May 2020.

Findings

28. We would normally expect complainants to come to us within 12 months of knowing they have cause for complaint. Mr X attended the site meeting in 2017. If he had concerns about what was discussed it was open to him to raise this with us at the time. In any case, this meeting was referred to in our previous investigation which considered the Council’s actions regarding use of the bridleway. I cannot consider matters which have already been part of an Ombudsman investigation.
29. The decision to confirm the CPO was made by the Planning Inspector. Mr X and other objectors had the opportunity to raise their objections at the public inquiry. Mr X has raised concerns about the information provided to and considered by the Inspector. We have no jurisdiction to consider what happened at the public inquiry or the Inspector’s decision.
30. It is Mr X’s view that the Council is seeking to apply the law incorrectly in changing the bridleway to a BOAT. He believes the Council cannot modify the definitive map in the way it intends and is required to consult on the modification. The Council sought legal advice and is satisfied with the process it is following. Mr X is disputing a point of law. The Ombudsman cannot make a judgement on disputed points of law. A legal dispute is ultimately a matter for the courts to decide.
31. In any case, regardless of whether or not the definitive map is amended, under common law the Council as landowner can expressly dedicate the land as a vehicular highway for all purposes. This allows vehicles to use it to access the car park.

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Final decision

32. I have discontinued my investigation as there is nothing I can achieve by further investigation of the complaint.

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Investigator's decision on behalf of the Ombudsman

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