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Hampshire County Council (20 008 980)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 28 May 2021

The Ombudsman's final decision:

Summary: Mr and Mrs F complain about the Councils’ actions in relation to public rights of way. The Ombudsman cannot investigate some elements of this complaint and could not achieve anything from further investigation of other elements. We have therefore used our discretion to discontinue the investigation.

The complaint

  1. Mr and Mrs F complain about the Councils’ actions in relation to public rights of way. In particular that the Council:
      1. has failed in its legal duties to properly maintain public rights of way.
      2. has not updated or kept the definitive map for a bridleway under continuous review.
      3. has wrongly used Ordnance Survey maps or title plans to determine the position of a legal boundary.
      4. has unlawfully removed their hedge and fence and has not followed procedures and policies when taking enforcement action under the Highways Act 1980.
  2. As a result, Mr and Mrs F say 85 metres of mature native hedge has been destroyed and their fence removed.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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
  • the injustice is not significant enough to justify our involvement, 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)

  1. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone can appeal to 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, section 26(6)(b))
  4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  5. The Ombudsman has no authority to decide property boundaries. Only the courts can resolve a boundary dispute between landowners.

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How I considered this complaint

  1. I spoke to Mr and Mrs F about their complaint and considered the information they sent and the Council’s response to our initial enquiries.
  2. Mr and Mrs F 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

Rights of way

  1. Rights of way (which include bridleways) 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.
  2. 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.

Right of way modification order

  1. A member of the public can ask for a “modification order” to the definitive map if he/she believes (and has supporting evidence) that a footpath or other right of way is shown on the wrong place on the map. This process can also be used to claim that an existing path should be on the map if it is not.
  2. If a person applies for a modification order, the council will investigate and review all the evidence it has. If the council decides an order should not be made the applicant has a right of appeal to the Secretary of State. If the order is made, it must be publicised and if there are no objections from the public, it is confirmed and the right of way is added. If it is opposed the council must submit the proposed order to the Secretary of State for a decision.

Highways obstruction

  1. A council has a responsibility to ensure the public can use the rights of way in its area. This includes a responsibility to clear excess vegetation and to enforce the removal of obstructions.
  2. If an obstruction is found the council should ask the landowner to clear it. It may do this by serving a notice on the person under the Highways Act 1980. If the landowner fails to comply the council can start court proceedings. The penalty for non-compliance could include removal of the obstruction, with reasonable costs being recovered. Time frames for removal of obstructions before formal enforcement action is taken vary between 24 hours and 28 days depending upon the type of obstruction.
  3. Section 143 of the Highways Act 1980 gives councils the power to remove structures. In the event the person does not remove the structure within one month, the council has the power to remove it itself. It may then recover the reasonable costs of doing so from the person. Notices served under section 143 have no right of appeal.
  4. Section 154 of the Highways Act gives councils the power to remove overhanging vegetation. Notices served under section 154 can be appealed to the magistrates’ court.
  5. Section 130 of the Highways Act gives a member of the public the right to serve a notice on the council requiring it to clear an obstruction. If it fails to do so, the complainant can then ask the magistrates’ court to order it to do so.

What happened

  1. There has been a great deal of correspondence between Mr and Mrs F and the Council about this matter. It is not necessary for me to set it all out all out here. I have only set out the key events leading to their complaint to the Ombudsman.
  2. In November 2018, the Council wrote to Mr and Mrs F to advise that their hedge and fence were obstructing a bridleway. This was followed in March 2019 with notices served under section 143 and section 154 of the Highways Act 1980.
  3. Mr and Mrs F complained about these notices. They said the hedge had been in place for many years and was on their land. They also complained that other residents had hedges encroaching on highways, but the Council had not taken action against them.
  4. Mr and Mrs F appealed the section 154 notice and this was considered by the magistrates’ court in July 2019. Their appeal was dismissed. Mr and Mrs F say the court decided there had been encroachment of a bridleway but did not rule on the position of the boundary or extent of the encroachment. They say the court said the boundary should be determined between them and the Council after the court hearing.
  5. The Council then issued a new section 143 notice and in August 2019 it wrote to Mr and Mrs F about the section 154 notice. The Council surveyed the land in September 2019 and marked out a boundary. Mr and Mrs F say this was done without discussion with them.
  6. They told the Council they had removed the fencing and posts, had dug up the hedging immediately behind the fence and had cut the rest back hard. They considered they had therefore satisfied the requirements of both notices. In November 2019 the Council said the whole hedge, including stumps, and the fence posts had to be removed.
  7. The Council removed the hedging in February 2020. They made a second formal complaint.
  8. The Council served a further section 143 notice in May 2020 to remove a temporary fence which Mr and Mrs F had installed to prevent trespassing on their land. Mr and Mrs F made a third complaint. The Council withdrew the notice until it had dealt with their complaint. It replied to Mr and Mrs F’s complaint in June 2020. It said:
    • The extent and location of the highway was a matter of public record. Mr and Mrs F had not provided any reliable evidence that they owned the land the hedge and fence were on. In dismissing the appeal, the Judge had reviewed the evidence and confirmed that the hedge and fence line obstructed the highway.
    • The Council’s survey had not relied only on the Ordnance Survey evidence and the land registry records accorded with the extent of the highway as interpreted by the Council.
    • The Council had kept the definitive map under continuous review. It was not appropriate to update the definitive map and statement because of narrowing through encroaching vegetation, as this did not affect the original rights or width of the bridleway.
    • The Council had received two reports of obstruction on the bridleway and had asked a large number of other residents along the bridleway to remove encroachments, which they had done.
    • The hedge-line had not been removed as directed in the section154 notice and for this reason enforcement action was taken.
  9. The Council then re-served the section 143 notice.
  10. There was further correspondence during the summer of 2020 as Mr and Mrs F escalated their complaints. The Council removed the hedge and fence in September 2020 and sent a final complaint response against all three complaints on 25 November 2020. The Council has advised Mr and Mrs F to apply for a modification order, but they have declined as they say they do not have the expertise to undertake this.
  11. Mr and Mrs F complained to the Ombudsman. They say the Council has treated them unfairly and had been biased. It had taken action against them, but not against neighbours and it had refused to discuss the matter or the evidence they provided before deciding on formal enforcement action.
  12. Mr and Mrs F complain the Council’s process to determine the boundary is flawed as it only considered the map and not all the evidence they had that the map was wrong. They say they have evidence the Ordnance Survey map used by the Council is flawed and they disagree with the Council’s survey methods. They also complain the Council has unilaterally determined the boundary, which it has no power to do.

My findings

  1. I understand that Mr and Mrs F complain about the Council’s actions and allege bias. However, at the heart of this complaint is a dispute about the boundary between Mr and Mrs F’s land and the bridleway. The Council’s actions are in relation to that boundary and so are intrinsically linked with the dispute.
  2. The Ombudsman cannot decide ownership of land. Those would be matters for a court to decide. This means I could not find that the Council should not have removed the hedge and fence as I cannot determine that it is on Mr and Mrs F’s land. Mr and Mrs F say their hedge stumps and temporary fencing are not within the recorded width of the bridleway, therefore the Council’s actions to remove them are illegitimate. I cannot find this as, if the boundary is not determined, I cannot say the hedge is or is not within their boundary.
  3. I could look at whether the Council gave sufficient notice to Mr and Mrs F of removal of the hedge, but even if I found it had not, I could not say this had caused significant injustice to Mr and Mrs F as the hedge was removed to the line on the definitive map, which I have no powers to challenge.
  4. They say the Council does not have the power to determine the boundary and wrongly has a process which only considers the map. The Council says it is using the boundary already set out in the records. It has surveyed the land, checked the title deeds, the definitive map and the ordnance survey map. The Council has considered the appropriate records to reach its view and I therefore cannot challenge that decision. If Mr and Mrs F consider the definitive map is wrong, they should apply for a modification order.
  5. Mr and Mrs F say the Council has not kept the definitive map under review. The Council dispute this. Whilst I could investigate the Council’s actions on this, I cannot achieve anything for Mr and Mrs F as I am unable to amend the definitive map.
  6. Mr and Mrs F complain the Council has not properly followed its enforcement procedures. They have already appealed the section 154 notice. The Ombudsman cannot investigate matters which have been before a court.
  7. I could look at the process the Council followed before it issued the section 143 notices in 2020, but the Ombudsman is not an appeal body so I cannot overturn the notices. In any event, I have seen no evidence of fault in the way the notices were issued and there is no suggestion the Council is acting outside its powers under the Act. So even if I did investigate further I consider I would be unlikely to find fault.
  8. Mr and Mrs F say the Council has not taken action against others to clear rights of way. The Council says it has done so. I have not seen the details of these cases, but Mr and Mrs F could ask the magistrates’ court to make an order requiring the council to do the work. This means it is out of the Ombudsman’s jurisdiction.
  9. I find I cannot investigate some elements of this complaint and could not achieve anything from further investigation of other elements. I have therefore used my discretion to discontinue my investigation.

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Final decision

  1. The Ombudsman cannot investigate some elements of this complaint and could not achieve anything from further investigation of other elements. I have therefore discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman

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