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Cornwall Council (20 003 331)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 21 Apr 2021

The Ombudsman's final decision:

Summary: Mr X complains about the extension by the Council of a Temporary Closure Order for a local public footpath. The Ombudsman has not found fault with the process the Council followed to extend the order.

The complaint

  1. The complainant, who I am calling Mr X, complains about the extension by the Council of a Temporary Closure Order for a public footpath close to his property. He says the reasons given by the Council for the extension are unjustified, the footpath is well used by him and other members of the public and should be re-opened.

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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:
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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)

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How I considered this complaint

  1. I have spoken to Mr X, made enquiries of the Council, and read all the information he and the Council have provided about the complaint.
  2. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making the final decision.

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What I found

Public rights of way – Temporary Closure Order

  1. S14 of the Road Traffic Regulation Act 1984 allows a County Council, as the highway authority, to make a Temporary Traffic Regulation Order, known as a Temporary Closure Order, restricting or prohibiting traffic on a public right of way because:
  • works are being, or will be, carried out on or near the road;
  • of the likelihood of danger to the public, or of serious damage to the road.
  1. For the purposes of the Act:
  • ‘traffic’ includes public use on foot, bicycle, horseback, carriage and motor vehicle;
  • ‘road’ includes footpath, bridleway, byway and restricted byway.
  1. A Temporary Closure Order can suspend public rights for a maximum of six months.
  2. A County Council does not have authority to extend a Temporary Closure Order. If it is necessary to extend the order, the County Council must apply for an extension to the Secretary of State for the Department of Transport. The Secretary of State has the power to extend an order for a further, unlimited, period.

The Definitive Map

  1. The National Parks and Access to the Countryside Act 1949 required all county councils in England and Wales to carry out a survey and produce a map showing all footpaths, bridleways and byways which were or could be reasonably alleged to be public rights of way.
  2. After consideration by the Secretary of State of any objections, a Definitive Map for each county was produced.
  3. Changes to a county’s Definitive Map must be made by Definitive Map Modification Orders (modification order).

What happened

Background

  1. We are only considering the complaint about action taken by the Council to restrict public use of the footpath from August 2019. Any complaint about its action before then is late and I do not consider there is good reason why we should consider it now. But I have set out the earlier events by way of context.
  2. In March 2018, the Council made a Temporary Closure Order (the order) prohibiting public use of a section of a public footpath close to Mr X’s property for a period of six months because of the likelihood of a danger to the public. The section closed included an old mining structure.
  3. Further to applications by the Council, the Secretary of State approved six-month extensions of the closure from September 2018, and March 2019.
  4. In August 2019 the Council applied to the Secretary of State for a two-year extension from September 2019. It said the closure was required because of public safety issues due to unstable structure and steep drop. It provided additional information about a proposed modification order adding an alternative path and questions as to whether the route of the closed section was shown correctly on the Definitive Map and the existence of a second path around the structure.
  5. The Secretary of State approved an extension of the order for a further two years. The approval letter said the Secretary of State:
  • was aware there was an ongoing complaint regarding the closure of the footpath but was satisfied the reasons for the closure were justified.
  • granted a further extension of the order until the 7 September 2021, or until completion of the works if earlier, to prevent any danger to the public while the Council progressed a modification Order.
  1. The published notice of the extension said:

“The Council is satisfied that this further restriction is necessary owing to engineering difficulties and the order is needed because of the likelihood of danger to the public due to an unstable structure and steep drop.”

  1. Mr X complained to the Council about the footpath’s continued closure in May 2020 and brought his complaint to us in August 2020.

Mr X’s complaint

  1. Mr X says:
  • The Council’s reason for extending the closure of the footpath is not credible. The structure is not unstable, and it has not identified the steep drops. The real reason for the closure is an attempt by the Council to extinguish this section of the footpath.
  • The Definitive Map shows the route of the footpath running through an old mining structure. It is not possible to follow the path through this section, and the public have always deviated from the definitive footpath at that point and walked around the structure.
  • The footpath runs between two roads. It was well used by him and other members of the public. Before the closure of the section of the footpath he was able to access his property from both roads at either end of the footpath. Because of the closure he can now only access his property from one of these roads.
  • The footpath has been closed now for over two years and the Council has taken no action to re-open it.

The Council’s response

  1. The Council says:
  • There is an obvious error on the Definitive Map. The route of the footpath was wrongly shown as passing through the old mining structure. It is seeking to redress this using the available legal procedures.
  • An emergency closure was requested by its contractor responsible for maintaining the Council’s highways and public rights of way due to the discovery of an unstable structure on the line of the footpath. Expert officers from the contractors and the Council’s Countryside Access Team identified hazards dangerous to walkers during site investigations. Users would have to negotiate the unstable structure, steep drops and high walls to follow the definitive path.
  • Substantial additional works are needed to make the path safe for users. It will maintain the closure for as long as necessary to protect legitimate path users.
  • An alternative path exists on the ground and is in daily use by the public. It has made a modification order to add this footpath to the Definitive Map.

Information provided by the Council

  1. It has provided email evidence confirming one of its countryside rangers met on site with an officer from its contractors in February 2018 to inspect the definitive route of the footpath. Following the site visit, the Council’s ranger reported the clearance of a large section of undergrowth without the Council’s authorisation which had exposed an unsafe wall, leaving the definitive route physically open to the public in an unsafe condition. The ranger noted the footpath also headed over a steep drop over a cliff. The ranger considered there was no choice but to request a six-month closure order to stop people from straying onto the unsafe section of the footpath.

Analysis – was there fault by the Council causing injustice?

  1. Our role here is to review the process the Council followed when making decisions about the extension of the temporary closure order and the application to the Secretary of State. If we found fault in the way the Council made its decision, we would consider the impact of this on Mr X. But we cannot question whether the Council’s decision was right or wrong if it followed the process correctly.
  2. The Council has now provided evidence of the reasons for its concerns about the likelihood of danger to the public at the time it made the closure order. It has also provided evidence of its continuing concerns about public safety as at August 2019 and the steps it took to obtain the required approval for the extension from the Secretary of State.
  3. I do not consider there was fault by the Council in the process it followed to extend the Temporary Closure Order from August 2019.

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Final decision

  1. I have completed my investigation on the basis there has been no fault by the Council in the process it followed to extend the Temporary Closure Order.

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Investigator's decision on behalf of the Ombudsman

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