Summary: We will not investigate this complaint about the alleged failure to maintain a public right of way. There is not enough evidence of fault by the Council to warrant an investigation. And, if the footpath is obstructed, Mr X can apply to the Magistrates Court to require the Council to remove the obstruction.

The complaint

1. The complainant, I shall call Mr X, says he complained to the Council two years ago that a landowner had changed a public right of way (PROW) by building a motocross track across it. Mr X says the landowner:
• built ramps and jumps making it difficult to use the path
• then took down signs and blocked the path
2. Mr X says the Council ignored him, using the restrictions caused by the COVID pandemic as excuses for not acting.

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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
• we could not add to any previous investigation by the organisation
• further investigation would not lead to a different outcome
• there is another body better placed to consider this complaint
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6))

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)

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained in December 2020 to the Council about interference with a PROW by a landowner.
8. The Council confirmed the matter was under investigation. In March 2021, the Council confirmed it was working towards reinstating the footpath.
9. In June, Mr X told the Council the landowner was holding race meetings and was telling people the footpath was no longer on his land.
10. The Council says the Local Planning Authority issued a Stop Notice to prevent further race events on the site. It then refused a planning application to use the land for such events. The landowner is appealing against the decision next to the field gate and says he will install a sign.
11. The Council says an Officer visited the site and gave a detailed description of the path. It is satisfied the PROW is accessible with no hazards to safety or property on the path. It advised of pressure on the PROW team due to COVID, with many landowners obstructing paths and removing signs to deter people from crossing their land. Also, more people have been using the paths due to lockdown.
12. It confirmed it deals with PROWs which are blocked with barbed wire, gates or fallen trees first. It usually deals with signage problems a district at a time. And that it reduced maintenance of footpaths during the COVID-19 lockdown period causing a backlog of works for which it has a limited budget.
13. In response to my enquiries, Mr X says:
• it is impossible to identify the route of the path across the field
• the footpath sign is missing; and
• the racetrack now has jumps making the footpath impassable in adverse weather.
14. We have discretion on whether to investigate a complaint made to us. We must consider the evidence of fault in the Council’s actions and the degree of injustice suffered by the complainant as a result.
15. Councils have a duty to ensure that PROWs are kept free of obstruction. But how they prioritise their limited budgets are a matter for the highway authority to decide. Apart from urgent repairs they have a scheme of priority usually according to the usage and status of the highway involved.
16. The Council can ask the landowner to clear any obstructions. 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.
17. 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.
18. I consider the Council’s response to Mr X’s complaint is a reasonable one. There is not enough evidence of fault which merits investigation. He says the footpath is not passable, however the Council confirms an Officer as walked the route and is satisfied it is passable. This is professional decision, that having inspected the route, the Officer is entitled to make.
19. Also, Mr X has the right to apply to the Magistrates Court if he believes the Council has failed to clear any obstructions on the PROW.

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Final decision

20. I will not investigate this complaint. This is because there is not enough evidence of fault to justify investigating. And it is reasonable for Mr X to apply to the Magistrates Court if he believes the Council is failing to require the removal of obstructions to the footpath.

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Investigator's decision on behalf of the Ombudsman