Summary: Mr X complains the Council failed to comply with a direction by the Secretary of State to deal with a definitive map modification application. Mr X says because of the Council’s fault, his clients cannot sell their property which is causing them distress and unnecessary time and trouble. We have found fault by the Council in failing to meet deadlines set but consider the agreed action of an apology, £250 and further action to address the backlog of applications provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of Mr and Mrs B that the Council has failed to determine a definitive map modification application affecting their land. Mr X further says the Council has failed to comply with a direction by the Secretary of State to deal with the application within a specific timescale. Mr X says because of the Council’s fault, his clients cannot sell their property which is causing them distress and unnecessary time and trouble in pursuing the matter.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. If we are satisfied with an organisation’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 read the papers provided by Mr X and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr X. I have explained my draft decision to Mr X and the Council and considered the comments received before reaching my final decision.

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What I found

What should happen

6. Councils must prepare and keep up-to-date definitive maps and statements to show public rights of way (PROW) in their area such as public footpaths and bridleways.
7. The law sets out how people may apply to their council for a definitive map modification order (DMMO) to have a public right of way recorded on the definitive map. Once the council has a properly made DMMO application, it should “as soon as reasonably practicable” decide whether to make an order. A decision to make an order needs evidence a right of way exists or is reasonably alleged to exist.
8. If 12 months passes without a decision, the applicant may ask the Secretary of State to direct the council to decide the application. The Secretary of State’s direction may include a deadline for the council to make its decision. The Government’s Rights of Way Circular 1/09 says, when considering whether to make a direction with a deadline, the Secretary of State:

“…will take into account any statement by the authority setting out its priorities for bringing and keeping the definitive map up to date, the reasonableness of such priorities, any actions already taken by the authority or expressed intentions of further action on the application in question, the circumstances of the case and any views expressed by the applicant.”

9. Circular 1/09 also 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…”
10. If a council decides not to make an order, the applicant has 28 days to appeal to the Secretary of State. On appeal, the Secretary of State will consider the evidence to decide if there is a case for making an order and, if so, direct the council to do so. The Secretary of State’s direction may include a deadline for the council to make the order.
11. If a council makes an order, further legal steps follow, which may include the Secretary of State deciding whether to confirm the order if people have objected to it. A public inquiry may be necessary and people asked about their use of claimed rights of way where there are inconsistencies in the evidence.
12. The Planning Inspectorate acts for Secretary of State with respect to the determination of an DMMOs by local authorities.

What happened

13. The Council has a policy for dealing with DMMOs which sets out that applications are dealt with in date order but those applications subject to directions from the Secretary of State will be dealt with first in the order in which the Council received the direction.
14. The Council’s policy also provides for applicants to apply for priority where there are exceptional circumstances. The circumstances that may be considered exceptional include where the land affected has received planning permission for development which may mean the loss of the claimed way or severe financial hardship is being caused.
15. The Council received an application for a DMMO affecting Mr and Mrs B’s land in May 2017. A year later the applicant asked the Secretary of State to direct the Council to decide the DMMO application.
16. The Council says that at the time the directions request was made it was discovered that the application had been mislaid and the application had not been processed, despite the application having been received by the Council as evidenced by recorded delivery. The application was subsequently processed and backdated, and all relevant parties consulted. It was further discovered that there was an error on the Definitive Map and Statement in relation to a PROW that is relevant to this DMMO application. The Council submitted a section 53 application to correct the error in October 2019 intends to consider both applications together. Mr X has expressed concern that this could further delay the determination of the DMMO application affecting his clients’ land if the subsequent application cannot be taken out of sequence.
17. In December 2018, the Planning Inspectorate directed the Council to decide the DMMO application within 12 months.
18. As the Council has received a direction from the Secretary of State, the application has been prioritised over those on which the Council has not received a direction. The Council has confirmed it currently has 74 applications on which it has received a direction from the Secretary of State and this application is currently ranked 28 of those 74. The applications above this ranking have received a direction prior to the date of the direction for this application. The Council has explained that the numbers change when a hearing of its Countryside and Rights of Way Panel (the Panel) takes place which is currently on a fortnightly basis.
19. The Council also highlights that there will be times when applications with a later directed date are taken to the Panel to be determined before those ahead of it on the list. The Council notes each case is different and some will require more work than others and involve more complex legal issues. This means it can take longer to complete a report for some applications than others and where an application is relatively straightforward and the report is completed it will be taken to Panel to be determined even if there are applications with an earlier directed date. The Council further notes delaying applications where a report is ready to be heard at the Panel on the basis other applications with an earlier directed date remain outstanding would simply add to the backlog of applications and not make good use of the Panel availability. The Council says this approach was adopted to deal with applications out of order in these circumstances at a Panel meeting in September 2021.
20. In responding to the Ombudsman, the Council has highlighted that it is a large rural county which means there are a large number of applications and potential routes that need determination. The Council also says it has received a large number of directions and is trying to determine these in the order in which the direction was received as soon as possible. The Council has added that it takes time to properly investigate the applications and produce a report on which a decision can be reached. The Council notes that when reports are circulated, they often prompt further responses from landowners and additional evidence which needs to be considered. The Council says there have been many occasions in the last year where late submissions of evidence from applicants or landowners have meant the report due to be heard by the Panel has had to be deferred and two occasions where the Council has had to cancel Panel meetings due to this factor.
21. The Council has also noted that it provided details to Mr X of how his clients could apply for priority using exceptional circumstances but no such request has been made. I have not attached any significant weight to this factor as it seems apparent the exceptional circumstances in the Council’s policy are not likely to be engaged for this application which Mr X has confirmed.
22. In response to earlier complaints about this area of service, the Council provided the Ombudsman with details of the action it had taken over the last few years to address the backlog. The Council had acknowledged the issue, allocated more resources, recruited extra officers to deal with applications, revisited its priority scheme and arranged for the Panel to sit more often. Since the most recent Ombudsman’s decision in August 2021, the Council says it has been able to increase the number of determinations made from around 10 applications each year to 21 applications. The Council says it continues to work hard to address the backlog and continually review its best allocation of resources.

Is there fault causing injustice

23. The Ombudsman has recently issued a Focus Report, ‘Under Pressure’. The Report recognises 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.
24. The key issue in Mr X’s complaint is the time it is taking the Council to make an order on this DMMO application. The law does not set a time limit for councils to deal with DMMO applications but requires them to act ‘as soon as reasonably practicable’.
25. The Council accepts it has a backlog of applications and cannot meet the directions set by the Secretary of State. The available evidence shows the Council’s DMMO backlog is longstanding. I consider there is fault by the Council in routinely failing to meet deadlines set to deal with applications and directions.
26. I consider this fault has caused Mr and Mrs B an injustice in terms of avoidable distress caused by the delay and the continuing uncertainty about the legal existence of the claimed right of way across their land.
27. More generally, applications for DMMOs often involve evidence given by local people about the use they have made of claimed rights of way. That evidence will be in written statements. Where an order is made and opposed, it is often necessary and helpful to ask people to clarify and or expand on what they have written. Similarly, if unresolved objections lead to a public inquiry, people may attend and describe their use of a claimed path to the inspector acting for the Secretary of State. As years pass, people move away, may die or become unable and or unwilling to take part in public inquiries.
28. I further find that other DMMO applicants may be facing similar lengthy waits before the Council both investigates their claimed paths and, where appropriate, makes an order (see paragraph 3 of this statement).

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Agreed action

29. In order to provide a remedy for the injustice caused to Mr X’s clients by the fault I have identified above, the Council has agreed within one month of my final decision to:
1. write to Mr and Mrs B to apologise for its delay in making an order on this DMMO application and its failure to provide a reasonable timescale for carrying out the Secretary of State’s direction;
2. pay Mr and Mrs B £250 in recognition of the avoidable distress caused by the delay and continuing uncertainty about the legal existence of the claimed right of way; and
3. review its published policy to ensure its approach to dealing with applications out of date order in some limited circumstances as adopted by its Panel in September 2021 is clear.
30. The Council has further agreed to use its best efforts to determine the relevant DMMO application as soon as reasonably practicable and to consider in particular how to avoid adding further delay through its consideration of the more recent section 53 application.
31. In order to remedy the wider injustice identified above the Council will:

1. complete a review of its DMMO service with the aim of further reducing the backlog considering current staffing and experience levels, work practices, policies and procedures and how other local authorities have dealt with similar backlogs within three months of my final decision;
2. report the findings of the above review to councillors and seek approval for any changes required within three calendar months of completing the review;
3. following the above outcome, write to DMMO applicants updating them on any changes to the DMMO service; and
4. following the above outcome also provide an update every six months to councillors on its progress in reducing the DMMO backlog for the next two years.

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Final decision

32. I have completed my investigation as I have found fault causing injustice but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman