Lincolnshire County Council (21 011 255)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 19 Apr 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to determine a map modification application which concerns public rights of way. The Council has delayed forwarding the definitive map modification order application to the Secretary of State and has advertised a wrong date for making representations against the application Mrs X complained about. That said, we cannot provide the outcome Mrs X wants as the Council has a plan in place for addressing its backlog and we cannot direct its financial resources in this respect. Our investigation is now complete.

The complaint

  1. Mrs X says the Council has delayed dealing with a definitive map modification order (DMMO) application made in 1989. Further, she says the Council has failed to refer this application to the Secretary of State to deal with after it made a DMMO and after it realised that it could no longer contact the objector to the application.
  2. Mrs X says this matter is putting the public in danger because at times people cannot use the bridleway as it gets obstructed. This means members of the public have to use roads instead. She wants the Council to progress the Map Modification Order without unreasonable delay.

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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 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)
  3. 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 the fault has not caused injustice to the person who complained or the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
  4. 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).

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How I considered this complaint

  1. I have reviewed Mrs X’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, including supporting documents and applicable policy and legislation.
  2. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Background and legislative framework

  1. All local authorities must prepare and keep up-to-date ‘definitive maps and statements’ (DMS) to show public rights of way (PROW) in their area such as public footpaths and bridleways.
  2. The law sets out how people may apply to their council for a Definitive Map Modification Order (DMMO) to have PROW recorded on the definitive map. This is under section 53 of the Wildlife and Countryside Act 1981 (WCA). Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order to modify the DMS.
  3. A decision to make an order needs evidence a right of way exists or is reasonably alleged to exist. The DMS can be modified, if evidence can be found to show that there is an error. There may be evidence to show that a right of way shown on the map and statement is not a public right of way. Or it may be alleged that a public right of way exists that should be added to the map. Where a local authority is satisfied that the evidence supports a change, a map modification order (MMO) is made to vary the map and/or statement to reflect that evidence.
  4. If a council makes an order, it only takes effect when it has been confirmed. The Council can confirm an unopposed DMMO. If the DMMO has been opposed the Council must sent it to the Secretary of State for confirmation. A public inquiry may be necessary, and people may be asked about their use of claimed rights of way where there are inconsistencies in the evidence.
  5. Circular 1/09, at paragraph 1.8 says, councils “should ensure that sufficient resources are devoted to meeting their statutory duties with regard to the protection and recording of public rights of way…”.

Definitive Map Modification Order

  1. Anyone can apply to their local council for an DMMO. The procedure for making a modification order depends on whether the order is to be made upon the council’s own initiative or because of an application coming in from outside. The format of the order is prescribed in the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993.
  2. Applications for a modification order are made to a council under section 53(5) WCA 1981. The procedure for an application is set out in Schedule 14 WCA 1981. If the council fails to make a decision within 12 months, the applicant may seek a direction from the Secretary of State. Further, if the Council decided not to make the sought DMMO, the applicant may appeal to the Secretary of State.
  3. The Planning Inspectorate acts for the Secretary of State with respect to the determination of DMMOs by local authorities.

What happened

  1. In 1988 the Parish Council applied to the Council to include a bridleway on its Definitive Map. In 1992 the Council investigated the application and issued a DMMO to add the bridleway to the Definitive Map.
  2. In response the Council received a single objection without any supporting evidence. As the Council cannot confirm an opposed DMMO, it should have referred it to the Planning Inspectorate, but in the last 31 years it has not done so.
  3. In 2006 the Council introduced its Prioritisation of Definitive Map Modification Orders policy. At the time, the Council assessed all the applications that it had and organised them in accordance with the new policy. The Council also wrote to all the applicants and told them if and how the new policy affected their application. In this case, the Council determined that the DMMO did not meet the requirements to be prioritised.
  4. In December 2020 a national interest group complained to the Council about the delay in confirming the DMMO from 1991. The Council did not respond to this complaint.
  5. The national interest group chased its complaint again in August 2021. The Council responded in January 2021 and said:
    • it is regrettable that such a long time has passed since the application;
    • the Council had limited resources;
    • the Council used its DMMO prioritisation policy to ensure that the applications that are most beneficial to the public get progressed sooner;
    • the application the national interest group complained about did not meet any of the criteria for prioritisation; and
    • the Council understood the complaint about the “reasonableness” of the time it has taken it to refer this application to the Secretary of State.
  6. In August 2021 the national interest group wrote to the Council and said that if the Council could not determine an application, it must as soon as reasonably practicable refer it to the Secretary of State for determination. It also pointed out the Council failed to do this for the last 28 years. In the same month Mrs X complained to the Council about how it handled the DMMO application.
  7. In September 2021 the Council responded to Mrs X’s complaint and said:
    • it approached the member of the public who submitted a representation to withdraw it, but they did not respond;
    • a Land Registry search suggested the objector has emigrated and the Council could not contact them since 2008; and
    • the case was third on the priority list to be processed, but the Council would have to review the documents because of the age of the case.
  8. Mrs X was not happy with the Council’s response and in October 2021 she complained to the Ombudsman. She said the Council should not have accepted the objection it received because it was submitted late.

The Council’s response to our enquiries

  1. The Council told us that:
    • the delays were caused by the limited resources the Council had to deal with DMMO applications;
    • since April 2021 the Council received 54 new DMMO applications which further added to the demanding workload;
    • it made an error on the notice advertising the DMMO order saying the deadline for representations against the order was 29 June. It corrected it on the notifications on the site and in the press, but not the ones sent to the District Council. The Council received the representation on 14 June and accepted it because of the error the Council made in the notice advertising the DMMO;
    • it was reviewing its resources to decide if it had the capacity to assign more officers to processing the DMMO applications; and
    • it was reviewing its prioritisation policy to ensure it was still fit for purpose.

Analysis

  1. Although Mrs X has been aware of the DMMO application for over 12 months, we decided to investigate her complaint. This is because the Council recently accepted her complaint, and we can consider the Council’s most recent position on the delays in processing DMMOs.
  2. The Ombudsman has recently issued a Focus Report (the Report), ‘Under Pressure’. The Report recognises that councils face budget pressures and that delay caused by service request backlogs is a key theme in many of our investigations. The Report says the presence of delay does not necessarily mean there is fault by a council. Rather, we will consider whether the law requires councils to act in a set time, what steps a council has taken to explain what is happening and to anticipate and respond to increasing pressures. We will also consider the impact of delay on the complainant.
  3. The Council accepts it has a backlog of applications that go back to 1989. So, I consider there is fault by the Council in how long it is taking it process the definitive map application orders. That said, the Council has explained how it is approaching the outstanding applications. In particular, the Council has said it will consider recruiting and training additional staff and will review its current prioritisation policy to make sure it is fit for purpose.
  4. The Council also accepted that it was at fault when it made an error in the notifications it published when it first advertised the DMMO. Mrs X said the Council should not have accepted the representation it received against the DMMO because it was late. The Council accepted it to rectify its error in the notifications. I cannot say, even on balance of probabilities, how soon this application would have been processed had the Council not accepted the representation it received against the application. This is because this is not the only historic DMMO that is still waiting for processing, and the reason for the delay is the Council’s limited resources.
  5. I do not consider we can achieve anything further for Mrs X, especially as the Ombudsman cannot direct how the Council allocates its resources. We also cannot achieve the outcome Mrs X is seeking for the Council to process the specific application without further delay as the Council is applying its prioritisation policy.

Injustice

  1. I must determine whether Mrs X has suffered serious loss, harm or distress by reason of the identified fault (above). In my view, Mrs X is bringing a complaint on behalf of a larger group of people to raise wider public interest matters about the Council’s responsiveness to applications generally.
  2. In addition, I do not consider there is a personal and significant injustice because of the time it has taken Mrs X to complain to the Ombudsman, despite being aware of delays since 1992. In my view, this suggests it has not been an issue causing her such significant injustice as she could have come to us sooner. I do not consider therefore Mrs X has suffered a personal and significant injustice by reason of fault by the Council that would warrant a personal remedy.

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Final decision

  1. The Council was at fault for the delay in processing the DMMO Mrs X complained about, and for advertising a wrong representation date on its notices. That said, we cannot provide the outcome Mrs X wants as the Council has a plan in place for addressing its backlog and we cannot direct its financial resources in this respect. In addition, Mrs X has not suffered a personal and significant injustice because of the fault by the Council. Our investigation is now complete.

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Investigator's decision on behalf of the Ombudsman

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