The Ombudsman's final decision:
Summary: Mr C complains the Council has failed to ensure the public can fully use the public rights of way network in his local area which means he and other residents cannot properly access them. We have found no evidence of fault by the Council.
- The complainant, whom I shall refer to as Mr C, complains the Council has failed to ensure the public can fully use the public rights of way network in his local area. In particular, Mr C complains the Council has failed to take effective action in response to his reports of obstructions, missing and/or incorrect signage and maintenance issues or provide a timescale for action.
- Mr C says because of the Council’s fault, he and other residents cannot properly access the public rights of way network locally and he has spent unnecessary time and trouble in trying to resolve the issues.
The Ombudsman’s role and powers
- 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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation
- The relevant legislation concerning rights of way is mainly contained in:
- The Highways Act 1980
- Countryside and Rights of Way Act 2000
- Wildlife and Countryside Act 1981
- A Public Right of Way is a route over which the public have the right to pass and re-pass. All Public Rights of Way are highways and are protected by highway law and other legislation. The land over which the Public Right of Way runs is usually private land although the surface of the path is maintained by the highway authority. A right of way is recorded on the ‘definitive’ map and becomes a legal record of its existence at that point.
- It is the responsibility of the County Council as Highway Authority to assert and protect Public Rights of Way in its area.
- Government guidance confirmed there continues to be no legal right to block or obstruct Public Rights of Way or open access land. However, in circumstances where large numbers of people are using such routes, the landowner may consider:
- temporarily displaying polite notices that encourage users to respect local residents and workers by following social distancing guidelines and consider using alternative routes that do not pass through gardens, farmyards or schools
- offering an alternative route around gardens and farmyards where it’s safe to do so (they must gain permission from relevant landowners and make sure the route is safe for users and livestock) provided that the original right of way is maintained
- putting up signage warning people where footpaths are narrow and it is difficult to follow social distancing guidelines
- These temporary measures must be lifted as soon as social distancing measures are relaxed.
- The Council adopted a prioritisation framework in 2017 to set out how it deals with rights of way issues. All reported issues are logged on the Council’s Countryside Access Management System (CAMS) and prioritised based on the criteria set out in its framework. Issues are scored based on a combination of route category, the effect on the user and the risk. The Council says as a key principle it will look to address higher scoring issues before lower scoring issues and has provided the relevant scores for the routes and issues reported by Mr C.
- Mr C contacted the Council in early January 2019 to say there was a locked gate across a rail crossing on a particular footpath and a nearby path was overgrown and impassable. The Council logged the report and sent Mr C an acknowledgment the same day. This acknowledgment says the matter will be investigated and appropriate action taken and if Mr C required more information, he would need to contact the Council with the reference number provided.
- Mr C contacted the Council in April 2020 to say that although his previous report may not be urgent given the current circumstances of COVID-19, he would still like it reviewed when possible. Mr C stated he had visited the crossing the previous day and the gate was still locked but it now had a new notice to say it had been closed by the landowner. Mr C also reported issues relating to two footpaths to say they could not be followed in the area of the airfield as there was no signage or clear path. Mr C also said the routes were obstructed by a fence and lack of a crossing over a ditch which resulted in a lengthy diversion. The Council logged the report and sent Mr C an acknowledgment. The Council noted there was a proposal to divert this route and the matter was pending the outcome of a planning application.
- The Council acknowledged Mr C’s new reports towards the end of April and noted matters were likely to be addressed as the site was being developed. The Council also stated it would provide a update once the matter had been resolved but explained it was only dealing with urgent matters relating to safety as non-essential site visits had been stopped due to the Government’s COVID-19 restrictions.
- The Council responded to Mr C in early May about his report about the locked gate at the rail crossing. The Council explained it was awaiting an application from the landowner to address the issue. The Council also explained the legal route of the path was along the railway embankment and there was no evidence of this on the ground and it could not say when it was last usable. Mr C sought further information about the route and timescales for the application. The Council confirmed it was working with the landowner on the application and that the crossing had been closed on safety grounds and referred Mr C to the landowner for the date this happened. The Council explained that if the path was still signed at the eastern end this may be incorrect as the Definitive Map appeared to show the path at the bottom of the railway embankment which was now un-walkable due to the embankment being raised. The Council confirmed the overgrown path referred to by Mr C was not the right of way and following it led to private land. The Council confirmed it would investigate the signage further when restrictions on site visits were eased. The Council also contacted the landowner for an update on progress for the application.
- Mr C contacted the Council about issues affecting several public rights of way in June. Mr C enclosed a map with 6 locations highlighted and provided details of the obstructions he had experienced at each. In summary these were:
- the locked gate at the rail crossing (previously reported)
- issues relating to two footpaths in the area of the airfield relating to signage and access (previously reported - obstructions 2 and 3)
- poor signage at a junction of paths
- poor condition and flooding on a route
- lack of official signage and unauthorised signage on a route and its temporary diversion and suggesting it be formally changed to allow cycling
- The Council provided a detailed response to Mr C in early July about the six issues above. In summary this explained:
- there had been no formal closure of the rail crossing and the landowner was considering an application to extinguish the route which would involve public consultation
- the airfield site was being developed and the rights of way issues would be considered as part of the planning process by the District Council as the Local Planning Authority and any changes would be subject to public consultation
- the Council would investigate the new report about junction signage at this location which was a low priority route
- confirming the right of way along the edge of the track was used by agricultural vehicles and was a low priority route and may not be improved although it was possible this could be done during the development of an adjacent site
- the Council would contact the landowner about the signage and availability of the legal route which was a high priority route and noted the route was shown incorrectly on a map (the Council has provided a copy of its contact with the relevant map provider about this correction) which had led to this route being used over the years as the legal route across a field was not available and may result in a diversion order and explained the creation of a cycleway would require the landowners permission
- The Council also explained its rights of way network was categorised by priority and some routes away from village centres would be in the low category and would not receive the same level of service as high priority routes. The Council further explained that as COVID-19 restrictions were relaxed and lifted its focus would be on high priority routes and noted some of the routes Mr C had highlighted would be in the low priority category.
- The Council provided further information to Mr C in July about the final bullet point above. This confirmed the legal route of the right of way and confirmed the landowner would open a gap in the hedge and clear a route across the field which would be kept clear of crops in future. The Council also confirmed it was acceptable for the landowner to also provide a permissive path as an alternative but the legal route must be available. The Council confirmed some of the unofficial signs would be removed. The Council has provided details of its contact with the landowner.
- Mr C contacted the Council in September for an update about the removal of unofficial signs and an expected site visit about the closure of the railway crossing. Mr C also reported a new issue about out of date notices on a development site obstructing a right of way. The Council responded in September to confirm it was in contact with the landowner about the signage. The Council also confirmed the landowner had applied for a temporary closure order of the rail crossing. The Council would contact the developer about the out of date notices as the closure had been extended to February 2021.
- The Council issued an Emergency Notice on 3 September 2020 about the temporary closure of the rail crossing footpath and subsequently made an Order dated 17 September to temporarily close the footpath for six months from 24 September.
- Mr C contacted the Council in November about the grounds for the emergency closure of the railway crossing. Mr C also contacted his MP about the matter. Mr C’s MP contacted the Council on his behalf about the issues he had raised in November and the Council provided a detailed response to the individual issues raised. The Council provided a response to Mr C in December to explain the reasons for the emergency closure of the railway crossing to allow time for the landowner to prepare and advertise a six month temporary closure which would in turn allow for a formal diversion order or extinguishment order procedure.
- Mr C’s MP contacted the Council in December about obstructions 2 and 3 and the impact of the planning process on these rights of way and the flooding/poor condition of the route referred to as obstacle four. The Council provided further information on these routes to Mr C’s MP in December. This noted the first route highlighted was recorded as a no through route which did not connect to any other right of way or highway and this type of route was not signed or waymarked to reduce the risk of the public inadvertently trespassing if attempting to continue their journey instead of returning back on the route used. The Council confirmed the other route highlighted was severely affected by a sewerage works which made it impossible to use without removing this substantial obstruction. The Council confirmed the District Council were dealing with a planning application on the site and both the issues would be considered and addressed during the planning process. The Council explained it did not consider it was currently a good use of public resources to sign a route and act over an obstruction if the two issues were to be resolved as part of the planning approval. However, the Council confirmed the two issues would remain live until they were either resolved by the planning process or enforcement action if the planning application was refused. The Council also explained the poor condition and flooding of the other route was a low priority for action given its low category prioritisation under the Council’s priority framework.
- Mr C complained to the Council in December about its responses to his reports. Mr C asked for his complaint to be considered at Stage 2 of the Council’s complaints procedure so he could refer the matter to the Ombudsman. The Council explained Mr C’s complaint would need to be reviewed initially at Stage 1 of its complaints procedure and provided a copy. The Council explained if the relevant team considered there was nothing more they could usefully add it may escalate the matter directly to Stage 2. The Council confirmed in early January 2021 that his complaint had been escalated to Stage 2. The Council subsequently advised Mr C that following a review of the issues raised it did not consider there was any benefit in progressing the complaint and provided the details for the Ombudsman.
- Mr C has provided the Ombudsman with correspondence from the Department for Transport providing approval in August to extend the temporary closure order for the rail crossing to September 2022. This explains the closure request was granted in the interests of public safety to allow works to be completed to a nearby dangerous rail crossing. Mr C disputes the crossing is dangerous and says the alternative road crossing is more dangerous and also notes there are no ongoing works to the crossing.
- The Council has confirmed the crossing was temporarily closed between June and December 2017 for embankment works and was to be reinstated as close as possible to the original route following the completion of the works. The Council says it has not been possible to reinstate the footpath satisfactorily due to the physical nature of the encroachment of the embankment comprising ballast to support the railway line. The landowner made an application in 2017 for a small diversion to avoid the edge of the encroachment. However, this application was not progressed before the issue of encroachment was superseded by broader concerns about public safety on the adjacent pedestrian crossing. The Council says it became aware the railway crossing route remained closed to pedestrians in May 2018 following a site visit between officers and the landowner to discuss the initial Diversion Order application.
- The Council says it has been working with the landowner about a more extensive diversion to address both the issue of encroachment and public safety. The landowner has undertaken a public consultation to inform the submission of a revised Diversion Order application, which has now been made. The Council says it is hopeful the revised diversion, if successful, would resolve this issue and so does not intend to take any enforcement action until the process is concluded.
- Based on the information provided, I am satisfied the Council has responded to Mr C’s reports in line with its prioritisation framework. The Council has provided evidence of the action it has taken in response to each of Mr C’s reports and provided an explanation to Mr C about this action or cogent reasons where no action is proposed. I appreciate Mr C does not agree with the Council’s approach on some of the issues he has reported but this is not in itself evidence of fault.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman