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Cornwall Council (20 008 051)

Category : Transport and highways > Rights of way

Decision : Closed after initial enquiries

Decision date : 12 Jan 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about the Council’s failure to remove a right of way on their property from its definitive map. We should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

  1. Mr and Mrs X complained about the Council maintaining its definitive map which shows a public right of way passing directly through their property. They say the path is no longer usable and that the map is flawed. They want the Council to amend the map because it affects the sale prospects of their property.

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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’. 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 we would find fault, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

  1. I have considered all the information which Mr and Mrs X submitted with their complaint. I have also considered the Council’s response. Mr and Mrs X have been given an opportunity to comment on a draft copy of my decision.

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What I found

  1. Mr and Mrs X own a property which has a public right of way shown as passing straight through their land. They say the path has not been used by the public for years and that other maps show the right of way passing around the property. They are concerned that their sale of the property may be affected by the existence of the right of way on their land.
  2. They asked the Council to amend the map which they consider to be incorrect. The Council explained that the definitive map was drawn up in the 1950’s to represent what the highway authority at the time considered was the correct route. It has no power to change the map without undertaking the proper procedures under the Highways Act 1980.
  3. This could either be by way of a modification order followed by an extinguishment order, or by a diversion order onto an alternative route. Any of these could be subject to objections by the public and may involve months or even years if subject to a public inquiry. The Council advised that Mr and Mrs X would be liable for the costs of the orders because they are the landowners who must pursue the orders.
  4. The Council denies any liability for the work to modify the map because this is the historical legal document which it inherited from predecessor councils. The current route on the map is a matter of fact not opinion and it must follow the correct legal procedure to amend it.
  5. There is no evidence of fault in the information which the Council has provided in response to the complaint. The Ombudsman has no authority to amend or require and amendment to a legal definitive map.

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Final decision

  1. We should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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