Summary: We will not investigate Mr X’s complaint about the Council’s handling of an application to include a lane he owns as a public right of way on the definitive map. Investigation will not achieve what Mr X wants. The Council is about to inform Mr X of its decision. If the matter is progressed it can go to the planning inspector which is the proper body to deal with Mr X’s objections.

The complaint

1. Mr X complains the Council is trying to make a lane/bridleway he owns into a public right of way by following the definitive map modification order procedure. Mr X has planning permission to build housing on the land and says the Council’s actions are delaying his project and could cost him a huge amount of money. Mr X says the Council’s highways did not object to his planning application and so it should not pursue the right of way application. He says it is not in the public interest to make the lane into a right of way. He says a few years ago the Council refused his offer to build a tarmac path. Mr X says the Council is wasting public money. Mr X also says the Council will not deal further with his complaints and he wants to use stage 2 of its complaint procedure.

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The Ombudsman’s role and powers

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 could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, 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)

3. 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)
4. 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)
5. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

6. I have carefully considered all Mr X’s information and comments. I have considered his replies to the draft decision statement and discussed the complaint with him by telephone. The Council has provided the correspondence including its complaint replies.

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What I found

7. Under the Wildlife and Countryside Act 1981 (section 53) a council has the duty of maintaining and updating a definitive map of public rights of way in its area. Where the Council receives an application to add a route to the definitive map it will assess the situation. Where a council decides the route is a right of way it will issue a definitive map modification order which is publicised. Where a person objects to the order the council’s highways will refer the case to the secretary of state (planning inspector) for a decision. An objector who disagrees with the planning inspector’s decision can appeal it to the High Court.
8. In 2008 the Council received an application to include the lane on the definitive map. The Council says it has to assess the use of the lane in the 20 years before the application. Mr X bought the lane after the application. In 2020 the Council started to assess the application. It has written to the Ombudsman to say it has reached a decision and next week will write to all parties to inform them.
9. Mr X wanted to build housing on the land and several years ago suggested to the Council that he install a path. The Council says it refused because it is obliged to deal with the application according to the law and because it did not want to accept maintaining the path at public expense. Mr X tells me the Council said it would take many years to deal with the case which was on a waiting list.
10. Mr X has obtained planning permission from Lincoln City Council and started to build his housing. He says the Council’s highways did not object to the application and so he considers the Council should no longer pursue the right of way application. The Council says Lincoln City did not consult its countryside section. It says it is not liable for any loss Mr X incurs because he was aware of the public right of way issue and the potential consequences.
11. Mr X says he could lose £1 million due to the Council’s mistakes. He has written to the Council saying he would complain to this office and then make ‘a claim for damages and costs through the courts’. On 25 November 2020, the Council replied to Mr X saying it has explained the position in its communications of 28 July and 4 November 2020. It advised Mr X to take legal advice and says it will not communicate with him further via the complaint procedure. On 25 February 2021 Mr X complained to the Ombudsman.
12. Mr X tells me he believes the Council has gathered ‘corrupted’ evidence about the use of the lane due to officers knocking on doors and considering more recent information. He says there is an alternative public path nearby and no right over his land. Mr X wants the pursue the Council’s errors with it further.

Analysis

13. I will not investigate Mr X’s complaint for the following reasons:
14. Investigation will not achieve the outcome Mr X wants which is to stop the application to include his lane as a right of way for the public. The Council has now made a decision on the application and is writing to Mr X. If it makes a modification order, to include on the definitive map, Mr X can challenge via the statutory procedure. The case can go to the planning inspector and later, if necessary, a court (see paragraph 7). The Ombudsman cannot change that process.
15. The history of the case before February 2020 is outside the Ombudsman’s jurisdiction because Mr X complains late, after the 12 month permitted period (paragraph 3). This includes his proposal to build a tarmac path. I will not exercise discretion to investigate because Mr X could have complained sooner. It is common for there to be waiting lists and delay in this type of work due to lack of resources and there is nothing to achieve. The Council is correct that it must assess the application according to the law and relevant procedures.
16. A claim of financial loss due to Council negligence is outside the Ombudsman’s jurisdiction because Mr X has a remedy at court (paragraph 4). It is reasonable for Mr X to use his legal remedies. Mr X has written to the Council and stated his intention to do so.
17. We cannot investigate complaints that the Council is wasting public money (paragraph 5).
18. There is no reason for the Council to reply to Mr X further via its complaint procedure. The Ombudsman is the end of the complaint process. Mr X knows the way to challenge a modification order is to object and he intends to do so. This will result in the transfer of the case to the planning inspector.

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Final decision

19. The Ombudsman will not investigate Mr X’s complaint about the Council’s handling of an application to include a lane he owns as a right of way on the definitive map. Investigation will not achieve the outcome Mr X wants. The Council is about to inform Mr X of its decision. If the matter is progressed it can go to the planning inspector which is the proper body to deal with Mr X’s objections.

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Investigator's decision on behalf of the Ombudsman