Summary: Mrs X complains on behalf of her friend Mrs Y. Mrs X says the Council made a wrong decision which resulted in public equestrian access through a fence being obstructed. I have discontinued my investigation into Mrs X’s complaint as a further investigation would not lead to a different outcome and we cannot achieve the outcome Mrs X and Mrs Y are seeking. Due to jurisdictional constraints we cannot investigate the actions of the charity and landowner involved in this complaint.

The complaint

1. Mrs X complains on behalf of her friend Mrs Y. Mrs X says the Council made a wrong decision which resulted in public equestrian access through a fence being obstructed.
2. Mrs X says the Council should correct its mistake and instruct the charity to install a horse stile at Location C.

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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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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 considered the information provided by Mrs X and discussed the complaint with her. I made enquiries of the Council and considered its response.
6. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Background

7. The Law and Property Act (LPA) 1925, section 193, states that members of the public have rights of access for air and exercise over commons and waste lands.
8. Certain types of works on common land need the Secretary of State’s consent under Section 38 of the Commons Act 2006. Applications for consent to construct work on common land are dealt with by the Planning inspectorate. It is for the applicant to determine whether consent is needed.
9. The definitive map is a record of public rights of way in England and Wales. In law it is the definitive record of where rights of way are located. Each right of way also has a written description known as a definitive statement. The Definitive Map and statement are kept and updated by each local authority or unitary authority.

What happened

10. The Council awarded funding from its Township grant to a local charity for the installation of horse stile(s) on common land.
11. Mrs X explained, the Council agreed to change the access point (horse stile) at Location B before section 38 permission was received, but not at Location C. Mrs X says section 193 of the LPA 1925 gives equestrians rights to ride on any definitive footpath on common land that has been awarded section 193 status. Mrs X said horse riders have been unable to use this access for almost two years and it is unacceptable they must wait until a retrospective planning application is submitted and decided upon before legitimate safe access rights are restored. Mrs X says the Council should correct its mistake and instruct the charity to install a horse stile at Location C.
12. The Council said its role was to ensure rights of way were accessible in accordance with their status and Location C was defined as a footpath on the definitive map. Therefore, its role was to consider access for the public by foot only. This was a decision the Council was entitled to make. On this basis, the Council said it was not its role to consider section 193 of LPA 1925 or access rights for equestrians.
13. I appreciate that Mrs X and Mrs Y disagree with this and in their view section 193 LPA 1925 should have been considered by the Council when determining rights of way at Location C. It is not the Ombudsman’s role to interpret the law or determine which parties’ interpretation is correct. Therefore, further investigation would not lead to a different outcome.

Analysis

14. I have carefully considered Mrs X and Mrs Y’s complaint and their comments. I have also carefully considered the comments received from the Council.
15. Ultimately, Mrs X wants the Ombudsman to instruct the Council to instruct the charity to install a horse stile at Location C. The Ombudsman cannot do this. Therefore, in accordance with paragraph 3 above, I have discontinued my investigation on the basis that a further investigation would not lead to a different outcome, and we cannot achieve the outcome Mrs X and Mrs Y want. Due to jurisdictional constraints, we cannot investigate the actions of the charity and landowner involved in this complaint.

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Final decision

16. I have discontinued my investigation on the basis that, a further investigation would not lead to a different outcome and we cannot achieve the outcome Mrs X and Mrs Y want.

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Investigator's decision on behalf of the Ombudsman