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Kent County Council (20 006 440)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 10 Nov 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly consider the impact creation of a road would have on a public right-of-way and failed to respond to the nine questions he posed on behalf of local residents’ groups. There is no fault in how the Council considered the impact the road would have on the public right-of-way. The Council failed to respond to the complaint properly. An apology and payment to Mr X is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains on behalf of local residents’ groups. Mr X complained the Council:
    • failed to properly consider the impact creation of a road would have on a public right-of-way (PROW); and
    • failed to respond to the nine questions he posed on behalf of local residents’ groups.
  2. Mr X says those failures have left residents feeling the Council has not properly considered their concerns and has led to him going to time and trouble to pursue the complaint.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr X's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

  1. The National Planning Policy framework says planning policies and decisions should protect and enhance public rights of way and access, including taking opportunities to provide better facilities for users.
  2. The Council’s Countryside Access Improvement Plan 2013 (CAIP) says the PROW and Access Service contributes to the shaping of development framework policies to bring benefits to PROW and access provision from the development process, prevent where possible the avoidable loss of access and to mitigate any adverse impacts of development where possible.
  3. The CAIP says development can bring positive benefits for PROW and Access particularly through:
    • The improvement of existing PROW;
    • the application of good design principles to new routes;
    • the provision of new or up-graded routes.
  4. The CAIP says equally development can adversely impact upon the amenity and enjoyment of the network. Where this is the case responses will set out what those adverse impacts are likely to be and, where possible, how they can be designed out or mitigated.
  5. The CAIP says the service will respond with advice about how the proposed development can contribute to improving PROW and access provision and will work with developers to secure improvements through good design and/or developer contribution
  6. The CAIP makes clear in some circumstances the service may feel there is the potential for significant harm to be caused to the network by proposed development. In those circumstances an objection to the proposed development may be made.
  7. The Government’s has issued guidance on PROW in circular 01/09. This says proposals for the development of land affecting public rights of way give rise to two matters of particular concern: the need for adequate consideration of the rights of way before the decision on the planning application is taken and the need, once planning permission has been granted, for the right of way to be kept open and unobstructed until the statutory procedures authorising closure or diversion have been completed.

What happened

  1. Canterbury City Council received a planning application for a development of houses on a site which involved creation of an access road crossing a public bridleway. This is a public right-of-way. The Council, as highways authority, provided comments on the application in 2017. Those comments recorded the Council’s view that use of the bridleway would increase considerably as a result of the development which caused concerns about the safety for bridleway users. The Council recommended traffic calming measures with appropriate signage, a crossing facility and a financial contribution from the developer to upgrade the surface of the bridleway to mitigate that effect. The Council reiterated those comments when providing a further consultation response in 2018.
  2. Canterbury City Council refused planning permission. The applicant appealed and the Council submitted a highway statement of common ground. The Planning Inspectorate granted permission for the development, subject to various conditions. Although the Planning Inspectorate granted permission it noted:
    • ‘delivery of the main access would be required in advance of development taking place on the site. Thus, should there prove to be legal (or other) impediments to the delivery of the main access, the development would be unable to proceed.’
  3. The grant of planning permission included a condition which said:
    • ‘No development in any phase shall take place over any public right-of-way that exists in that phase (or sub phase) until confirmation of the order permanently diverting or extinguishing has been submitted to and approved in writing by the local planning authority.
    • The developer shall notify the local planning authority in writing of the interim arrangements for temporary diversion to any public right-of-way agreed with the relevant authority.’
  4. Mr X, representing local residents’ groups, asked the Council to provide various pieces of information in July 2020. That, and subsequent requests, were Freedom of Information Act requests. Amongst other things Mr X asked for details of the legislative provisions the Council was relying on to justify a main access road on a designated public bridleway. The Council responded in September 2020. Mr X raised concerns about the content of the Council’s response and subsequently sent the Council a further email asking it to clarify the legal justification for the developer constructing a main access road across the bridleway. The Council responded to say it believed it had answered the questions posed under the Freedom of Information Act. When Mr X again raised concerns about the Council’s response the Council directed him to the Information Commissioner’s office. Mr X made clear he wanted his concerns processed as a formal complaint.
  5. The Council responded to that complaint in February 2021. Other than reiterating the points covered in the Freedom of Information Act responses the only new information the Council provided concerned its view there was no other legal process required for the public bridleway as it was not being stopped up or diverted.
  6. In response Mr X asked the Council to clarify the issue relating to the effect on the public right-of-way during roadway construction. Mr X also said he did not see how the development could legally go ahead. In March 2021 Mr X reiterated his view public rights-of-way legislation and legal issues relating to constructing the main estate access road across the bridleway had not been properly considered by the Council and the Council had not addressed the issue of public nuisance law. The Council has provided a document showing it drew up a response to Mr X’s email. However, the Council accepts there is no evidence it sent that response to Mr X. Mr X continued to correspond with the Council about the public rights-of-way issue and the Council advised Mr X it had nothing further to add to previous correspondence as it did not identify it had failed to send the complaint response in April 2021.

Analysis

  1. Mr X says the Council failed to properly consider whether creation of a road would impede use of a public right-of-way. Having considered the documentary evidence I am satisfied the Council initially set out its concerns about how the development would impact on the public right-of-way and what it considered necessary to mitigate that impact. I am also satisfied when the application was considered by the Planning Inspector the Council provided a detailed statement setting out its views in relation to how the development would impact on the public right-of-way. That document made clear the Council’s view the proposed narrowing of the access road to act as a traffic calming feature and a section 106 contribution for improvements to the bridleway were sufficient to make the development acceptable in terms of the impact on the bridleway. Given those documents, I am satisfied the Council properly considered the impact the creation of a road would have on the public right-of-way. Clearly the Council takes a view with which Mr X strongly disagrees. However, it is not the Ombudsman’s role to comment on the merits of a review reached without fault. I have found no evidence of fault here and I therefore cannot comment on the merits of the Council’s decision. That is the case no matter how much Mr X disagrees with it.
  2. Mr X says the Council failed to respond to nine questions he posed to it on behalf of local residents’ groups. Mr X is referring here to nine questions set out in correspondence with the Ombudsman. Having considered the extensive communications between Mr X and the Council I have found nothing to suggest the nine questions were posed in that format to the Council as part of the complaint. It follows I cannot criticise the Council for not responding to questions that have not been explicitly posed to it.
  3. Having said that, I have some concerns about the Council’s response to Mr X’s complaint. The documentary evidence I have seen satisfies me before January 2021 Mr X had asked the Council to provide him with information under the Freedom of Information Act. Requesting information in that format is not the same as putting in a complaint and therefore the Council’s response will be different under that procedure as compared with the complaints procedure. It is clear from the communications Mr X had with the Council he had concerns about how the Council had assessed how the proposed new access road would impact on a public right-of-way. However, I cannot criticise the Council for the way in which it responded to Mr X in 2020 given at that point Mr X had submitted requests for information under the Freedom of Information Act, rather than asking the Council to deal with his complaint about how it had reached its decisions.
  4. I am satisfied by January 2021 though Mr X had made clear he wanted to pursue a complaint against the Council rather than a Freedom of Information Act request. I am satisfied there has been a large amount of correspondence Mr X since the original complaint. However, it has become clear that although the Council drew up a response to Mr X, addressing the issue of how the development would impact on the public right-of-way, why the Council considered that impact acceptable and why the Council did not consider the impact would create a nuisance, it did not send that response to Mr X. Failure to do that is fault. That has understandably led to Mr X having to go to time and trouble to pursue his complaint and has caused him distress in feeling the Council has not taken his concerns seriously.
  5. The Council has now provided the Ombudsman with a copy of the response that should have gone to Mr X, which has now been passed onto Mr X. I appreciate Mr X is likely to disagree with the Council’s assessment of how the development will impact on the public right-of-way. However, as I said in paragraph 3, it is not the Ombudsman’s role to comment on the merits of the Council’s decision unless there is evidence of fault in how that decision has been reached. In this case I am satisfied the Council has reached a decision it is entitled to reach and the fault lies in failing to properly explain that decision to Mr X. In those circumstances I recommended the Council apologise to Mr X as the representative of local residents’ groups and pay him £100 to reflect his time and trouble in pursuing the complaint. The Council has agreed to my recommendations.

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Agreed action

  1. Within one month of my decision the Council should apologise to Mr X for the failure to respond to his complaint properly and pay him £100.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr X an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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