Summary: Mr X and Mrs Y complain about the Council’s decision to build a new footpath/cycleway to create a new right of way on open green land near to their properties causing a nuisance. We found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. I have called the complainants Mr X and Mrs Y. They complain about the Council’s decision to build a new footpath/cycleway (footpath) across open green land near to their properties. Mr X and Mrs Y say the Council:
• Failed to consult with residents about the new footpath before creating an access to it by removing some hedgerow. Mr X and Mrs Y say the footpath should be subject to a planning application so the Council can consider objections.
• Only carried out public consultation after creating the access. The Council approved the footpath after two public consultation exercises which differed by three votes despite being an alternative route available.
• Failed to deal with the footpath as a new Right of Way but rather as a ‘highway improvement’ scheme. Mr X and Mrs Y consider the footpath is a new highway route so under highway law the Council cannot overrule objections made to the scheme.
• Failed to take account of residents’ objections and ignored a petition of 121 signatures from residents against the footpath.
2. Mr X and Mrs Y say the footpath will be built on higher land behind nearby houses causing overlooking of the properties. Since the Council created the new route there has been a rise in rubbish on the land and Anti-Social Behaviour (ASB) such as drug use and dog fouling on the green space.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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)
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

5. I have read the papers submitted by Mr X and Mrs Y and spoken to them about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
6. Mr X , Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key events leading to the complaint

7. Mr X and Mrs Y live in properties near a piece of land owned by the Council. Mr X’s property backs onto the land. Mrs Y’s property is a short distance away from the land and near to an existing footpath. Mr X and Mrs Y say the land has been green space used by residents for over 30 years.
8. In 2016 the Council received a planning application for a housing development near the land. The Council advertised the application by notices in local newspapers, site notices and told nearby residents of the proposals. It considered objections from residents when deciding the application.
9. The planning officers’ report for the development referred to a proposal to create a comprehensive scheme of footpaths and cycleways to link the site. The report referred to a new junction near the green space and a new footway/cycle path to link to an existing footpath near to Mrs Y’s property. The Council granted planning permission for the housing development in 2016. This included permission to create an access to the green space. The Council says because of this there is no need for a separate planning permission for the new footpath.
10. In August 2020 the housing developer built an access through a boundary hedge onto the land. The access was opposite to a road junction to the new housing development. The Council confirmed the works are part of the planning permission granted in 2016.
11. Councillors, officers, and residents held a site meeting at the green space in August 2020. The residents expressed concern about the impact of the proposed footpath scheme and asked for a formal consultation meeting to discuss it. The Council agreed to the meeting but could not find a suitable place due to Covid-19 restrictions. Because of this the Council decided to carry out public consultation by writing to owners of properties affected by the proposed footpath so they could send in comments.
12. The Council consulted in October 2020 and sought the views of property owners in front of the land including Mr X. The Council advertised the scheme on its website so other members of the community with an interest in the scheme could comment. The Council received 36 responses, one in favour and 35 against the scheme.
13. In December 2020 Councillors and officers discussed the outcome of the consultation exercise. It was noted the Council had only consulted those living near the scheme but not the housing development residents who would benefit from the footpath. The Council carried out further consultation in January 2021 and included residents of the housing development. The Council received 83 responses including those from first consultation exercise. There were 43 in support of the proposed scheme and 40 against.
14. The Council decided councillors on the Full Executive should consider the proposed scheme.

Executive committee meeting June 2021

15. The Executive considered a report on the matter in June 2021. The report contained a map showing the proposed footpath route and nearby houses. It explained the proposal to create a footpath/cycleway on Council owned land. It would link the existing pedestrian and cycle network serving the area.
16. The report detailed the responses to public consultation about the proposed scheme. The consultation highlighted views and concerns from people. The design of the scheme mitigated the concerns and the Council considered there remained overall approval for the proposals. But the responses against the scheme merited consideration. The report aimed to highlight the concerns and to seek Executive approval for the scheme to move to the implementation stage.
17. The report explained objections to the scheme including potential for crime, ASB, loss of privacy to properties and light pollution from lighting columns. The objections referred to increased use of the land, litter, dog waste, impact on property values and risk of flooding to gardens. The report referred to the residents’ request to use an alternative route.
18. The report responded to the objections and proposed alternative route. It explained the route was designed to minimise the potential for crime and ASB. The distance from residential properties meant the impact would be minimal and limit light pollution. The Council would provide waste bins for rubbish and dog waste.
19. The report explained the proposed route of the footpath had been carefully chosen to minimise its impact on nearby residential properties. The distance between the footpath and boundary of the nearest residential property would be about 40 metres. It was proposed to use lighting on the footpath that minimised light spill onto residential properties and mitigated any risks of ASB.
20. The new footpath would be built on Council-owned land and be dedicated for highway purposes. The report explained dedicating the land was a simple legal procedure to which there was no right of objection. But with all highway improvement schemes it carried out public consultation to seek the views of key stakeholders and sought Executive approval for the scheme.
21. The Executive considered the consultation responses and alternative route suggested. But decided there were strong amenity, personal safety, and road safety arguments for proposed route. The Executive approved the scheme and the Council told residents the outcome.
22. In July 2021 local councillors and officers held meetings with the project engineer and Police to discuss mitigating measures for the footpath.

Deed of Dedication 2022

23. As the Council had consulted with residents and Executive gave approval to implement the scheme the Council dedicated the land as a cycle track with pedestrian rights in January 2022. The Council says it did so using powers under Section 2 of the Local Government Act 2000. The act gives the Council the power to do anything to improve the economic, social, or environmental well-being of its area. This is a simple legal procedure to which there is no right of objection.
24. The Council told residents it planned to start work on the scheme in January 2022. It posted the deed of dedication at the site for a new cycle track, with pedestrian rights over the land from March 2022. This created a new right of way. The Council built the footpath in January 2022.

Mr X and Mrs Y’s further complaints

25. Following the Council’s decision to approve the footpath scheme Mr X and Mrs Y raised further concerns. They complained:
• The report wrongly said the footpath was 40 metres from the nearest properties. Mr X says the distances are 36 metres and 21 metres in places.
• They disagreed with the Council’s view the difference in height between the footpath and Mr X’s his property would not have an impact. This is because the footpath will be on land that was higher than Mr X’s house.
• The Council did not have a Section 50 licence in place in 2020 when it carried out some works to start the footpath.
• The Council did not include information about other road crossings when consulting residents of the housing development. Mr X says this means there will be road crossings close together and affecting traffic. So, residents were unaware of this when responding to the consultation.
• The Council did not consult the Police about the scheme. And the Executive report wrongly said there had been no reports of ASB on the land. Mr X says residents have made complaints about it over the years.
• The footpath is intrusive now it has been built. Mr X says no amount of planting will reduce the visual impact for existing residents.

The Council’s comments on the complaint

26. The Council says it built the new footpath/cycleway on Council owned land which it dedicated for highway purposes. It is a simple legal process which has no right of objection. The land is an existing route used by residents for over 30 years. The Council is creating a through route on land where public access already exists to establish a public right of way which will link up from the road. As landowner the Council are dedicating rights for the public to use the land.
27. If it created the right of way under Section 25 of the Highways Act by an agreement with the landowner, then the Council would need to consult with interested parties. Those parties would have the right to object to it. But as the Council is the landowner it does not need to use this section of the act as it cannot enter an agreement with itself.
28. The Council say all its schemes in the Annual Transport and Infrastructure Capital Programme are referred to as a ‘Highway Improvement’. This is because they are all part of improving the existing highway network or extending it. The new footpath connects the new residential housing development with an established centre of a nearby town. It will allow the housing development residents access to retail, education and community facilities using a safe and convenient pedestrian and cycle route. So, it is making a material improvement to the highway network serving that part of the Borough.
29. The Council confirms making an access to the land was part of a legal agreement and part of a condition for the planning approval of the development granted in 2016. It says a section 50 licence is only need if a statutory undertaker such as a water company wishes to install equipment within the adopted highway. The licence was not needed because no such equipment was installed as part of the new footpath.
30. The Council confirms it acknowledged the petition from residents during its consideration of the proposal and objections received.
31. The Council says it has not approved any other controlled pedestrian and/or cycle crossings on the nearby road. There is an uncontrolled crossing it may consider upgrading as part of a planning condition for further housing development. The Council considers that even if the road had another controlled crossing on it, the distances would not cause a material impact on the movement of traffic. So, it would not be a traffic management or road safety issue.
32. The Council acknowledged the report to the Executive in June 2021 says no existing residential property ‘within 40 metres of the proposed route alignment’. It accepts the statement was not factually accurate as the distance between the new pathway and some of the existing properties is less than 40 metres. Although it considers they are not much less.
33. But the Council considers it is relevant that the existing footpath/cycleway linking the new route to the town centre (by Mrs Y’s property) is much closer to the rear of adjacent houses. This is 2 metres at some points. It says most of its pedestrian and cycle routes are located significantly less than 40 metres from residential properties and are sometimes next to the residential properties they serve.
34. The Council says it specifically included residents’ concerns about loss of privacy, light pollution and ASB in the report to the Executive in June 2021. So, it decided to proceed after considering of these factors, with other concerns raised during public consultation.
35. The Council confirms it consulted with the Police as part of the detailed design process. Officers met a police crime prevention officer on site in July 2021. The Council acted on some recommendations made by the Police about the design of the scheme.

My assessment

36. The Council confirms it carried out consultation on the planning application for the housing development in 2016. This included notifying nearby residents. The Council considered any objections before approving the application. The access to the green space by Mr X’s house formed part of the planning approval granted in 2016 so the Council did not need to make a separate planning application for it. The Council confirmed the access could be created when the works were carried out in 2020 as it had the necessary consents in place. There is no evidence of fault by the Council in creating the access to the green space by Mr X’s property.
37. The green space land belongs to the Council so it can carry out works to it. The new footpath is a highway improvement scheme so the Council will carry out public consultation about it. The Council did so in this case. It consulted with nearby residents and then those who would be likely to use the link. While Mr X and Mrs Y may not agree with the consultation exercises carried out, it is for the Council to decide the extent of the consultation it carries out.
38. The documents provided show the Council acknowledged the residents’ petition. The Executive report and minutes show it also considered residents’ objections to the scheme. These were listed out in the report with officer comments on each issue. The Council also designed the footpath to mitigate the concerns raised about ASB and impact onto nearby residential properties.
39. The Council accepted the distance of the footpath to residential properties is less than 40 metres in places although not by much. This may cause concern to Mr X, but I consider on the balance of probabilities it would not have altered the outcome of the Executive’s decision to approve the scheme. This is because some councillors had visited the site when consulting with residents and there was a plan showing the location of the footpath and nearby properties. In addition, there are other footpaths in the Borough closer than the distance of this footpath to existing properties including the footpath it is linking to. The new footpath in this case still maintains a distance of over 20 metres from properties.
40. The Executive report shows the Council looked at the alternative route proposed by residents. But decide it was not a safe alternative. The evidence shows the Council considered the objections and decided to approve the scheme. This is a decision it is entitled to make. There is no evidence of fault in the way it reached the decision.
41. The Council does not need to carry out any further consultation as it owns the land the new footpath is being built on. Although the footpath will be a new right of way it is being created by the Council dedicating the land. The Council is not creating the right of way under highway legislation, so people do not have the right to object as Mr X and Mrs Y have suggested. The Council has created a deed of dedication to use the land as highway. So, there is no evidence of fault in the way the Council created the new right of way.
42. The Council confirmed there are no other road crossings planned near to the green space. The Council does not consider it would impact onto the traffic flow even it of did intend to install another crossing.
43. Mr X and Mrs Y raise concerns about increased rubbish and ASB in the area now the footpath has been built. Mr X and Mrs Y need to raise these concerns with the Council first so it can consider the issues.

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Final decision

44. I am completing my investigation. I have found no evidence of fault by the Council in the way it decided to create a new footpath/cycleway on land near to the complainants’ properties.

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Investigator's decision on behalf of the Ombudsman