Summary: We will not investigate this complaint about a right of way. This is because there is not enough evidence of fault to justify our investigation.

The complaint

1. Mr and Mrs Y complain the Council failed to divert or extinguish a right of way after an estate of houses was built in the 1980s. Consequently, while a footpath is built on a field next to their property, the right of way runs across their garden.
2. Mr and Mrs Y say the Council has told them they need to apply and pay the Council for the right of way to be moved. They say this will affect the price they are able to sell their home for if they do not now have the right of way diverted but feel this is unfair.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I considered the information Mr and Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

5. Mr and Mrs Y own a property which was built in the 1980s. When the Council gave planning permission for the development to be built, it included a condition that a footpath link to the next road would be constructed and available for use before any of the houses were occupied.
6. Mr and Mrs Y bought their property in 2001. Their solicitor completed a local authority search, but this did not show the existing right of way as this was not part of the local authority search requirements at the time. Mr and Mrs Y did not ask the Council any further questions about any rights of way before purchasing the property.
7. In 2016, the rules about questions a buyer or their solicitor should ask in a property purchase changed. From 2016, it became a requirement that questions about existing rights of way are asked during the local authority searches prior to purchase.
8. In 2021, Mr and Mrs Y tried to sell their house. At this point, Mr and Mrs Y became aware that the original right of way still ran across their land and not along the footpath which the developer had constructed. They complained to the Council about this in June.
9. The Council responded in July 2021. It said the legal diversion process for the right of way would have been the responsibility of the developer when the properties were built in the 1980s. It said that although it was not compulsory, it was the responsibility of Mr and Mrs Y, and their solicitor, to satisfy themselves of any rights over their land when they were purchasing the property in 2001 under a principle commonly referred to as ‘buyer beware’. It said that, as the Council had not been asked about any rights of way running across the property, it had not provided any information about this. It therefore denied fault.
10. Mr Y and Mrs Y say they have been told they can have the right of way extinguished or diverted by making an application to the Council. They say this will cost approximately £3,000. They say that if the problem is not resolved, they will be unable to sell their home without a reduction in their property value. Mr and Mrs Y approached us in October.

Analysis

11. When the land on which Mr and Mrs Y’s property is built was developed, it was the responsibility of the developer to apply to the Council for any rights of way to be either extinguished or diverted. In this instance, the developer did not make the application. The developer did however construct a footpath as required, which now runs behind the property.
12. It was then for any buyer, and subsequent buyers since then, to satisfy themselves there were no issues with the property before completing the purchase. While it was not a requirement, Mr and Mrs Y did not ask the Council as part of any local authority searches about any rights of way running across the property before making their purchase. Consequently, under ‘buyer beware’ when they had bought the property, they also accepted it with the right of way still running across it.
13. Therefore, as owners of the land, it is now the responsibility of Mr and Mrs Y to apply for the right of way to be moved if they do not want it to run across their property. However, as the Council has never owned the land, it is unlikely we would find it at fault for not having diverted the right of way. Consequently, there is not enough evidence of fault to justify our investigation.

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Final decision

14. We will not investigate Mr and Mrs Y’s complaint because there is not enough evidence of fault to justify our investigation.

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Investigator's decision on behalf of the Ombudsman