Cornwall Council (23 014 145)
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed in its statutory duty to assert and protect the rights of the public in respect of an obstruction on a public right of way. We found evidence of delay by the Council in acting to resolve this matter. The Council agreed to apologise to Mrs X, make her a symbolic payment and decide what action it will take about the obstruction.
The complaint
- Mrs X complained the Council failed in its statutory duty to assert and protect the rights of the public in respect of an obstruction on a public right of way.
- Mrs X says the Council’s failure has left her unable to enjoy a right protected by statute and caused her stress and inconvenience.
The Ombudsman’s role and powers
- 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)
- 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
How I considered this complaint
- I considered information from Mrs X and the Council’s response to our enquiries.
- Mrs X could have asked the court to order the Council to clear the obstruction. As set out in paragraph 3, we cannot normally investigate a complaint when someone can go to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to do this.
- I have decided to exercise discretion and investigate the Council’s handling of Mrs X’s reports. I have done so because the Council has not decided what action it will take in response to her report.
- I have considered the relevant legislation and guidance.
- I considered our guidance on remedies.
- I set out my initial thoughts on the complaint in a draft decision statement and invited Mrs X and the Council to comment.
What I found
- 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.
- The Highways Act 1980 gives councils a duty to ensure the public can use the rights of way network within the area it covers. Councils should ensure that any obstructions it identifies, or that are reported to it, are removed as soon as is reasonably practicable.
- Government guidance, Public rights of way: local highway authority responsibilities, says if someone reports an obstruction and requests that it is removed, councils must:
- respond to all requests within one month to confirm receipt.
- contact the person who complained to tell them what action they are taking.
- make sure the obstruction is removed, either by the local authority or the person responsible for it.
- Where the council identifies an obstruction, a statutory time frame may have to be employed to allow for its removal before formal enforcement action can be taken. The council should begin by asking the landowner to clear the obstruction. The penalty for non-compliance could include removal of the obstruction, with reasonable costs being recovered from the offender. If the landowner fails to comply the council can start court proceedings to force the owner to comply.
Cornwall Council Public Right of Way Enforcement Policy
- This policy sets out how the Council will enforce issues impacting PROW.
- It states that when an obstruction is reported it will prioritise the report into one of four categories, with category one having the highest priority and category four the lowest. Within in each priority category a higher priority will be given to gold paths, then sliver paths and then bronze paths.
- The policy sets out an eight-stage enforcement procedure. The steps are:
- Stage 1: Review the path file and records.
- Stage 2: Establish the offence: This involves visiting the site to identify the nature of the obstruction.
- Stage 3: Conciliation: This is an opportunity to try and rectify the situation without formal action being taken.
- Stage 4:Re-inspection: The site will be re-visited to gather further evidence.
- Stage 5: Case Referral: The Council’s Senior Enforcement officer will review the case file. When a review indicates a complex problem, the case will be placed on the Enforcement Schedule for Resolution. Only two cases from the schedule will be dealt with over a five-year period.
- Stage 6: Formal notice: This is the issuing for a notice requiring removal of the obstruction.
- Stage 7: Interview: It may be necessary to interview the party responsible for the offence to establish the evidence is correct.
- Stage 8: Formal action: This can include a written warning, formal caution, actions through the Magistrates Court or direct action.
What happened
- Footpath Y is a PROW and shown on the Council’s definitive map, which is a legal record of PROW in its area. A building has been built across Footpath Y.
- In early 2023 Mrs X told the Council about the building obstructing Footpath Y. She asked the Council to act to remove the obstruction. It said it would investigate.
- In June 2023 the Council arranged a site visit to Footpath Y with Mrs X.
- In July Mrs X made a complaint to the Council. She complained the Council had failed to take suitable action to protect and assert the rights of the public to pass along Footpath Y. She asked the Council to decide what action it would take.
- Also, in July the Council asked its planning department if the building had planning permission.
- In August the Council replied to Mrs X’s complaint. It said that it would carry out a second visit to Footpath Y in September. It said it was investigating if the building has planning permission. It recognised the Council had not acted on Mrs X’s requests.
- Meanwhile Mrs X asked the Council to remove vegetation also obstructing Footpath Y. The Council’s contractor said it would need to remove an earth bank to create the desired path width. It said the cost of these works, removal of the vegetation and repairing the surface of the footpath would be £15,000. The Council decided it would not carry out these works because Footpath Y would still be unpassable because of the building obstructing it.
- In November the Council’s planning department said the building was granted planning permission several decades ago and prior to the introduction of the Highways Act 1980.
- In December the Council contacted the owner of the building about it causing an obstruction.
- In January 2024 a representative of the landowner contacted the Council. They explained the landowner is terminally ill and would like the matter addressed after their death. The Council advised that it had a duty to act to remove the building.
- In February the Council met with landowner’s representative to discuss matters. This included the Council’s suggestion the landowner make an application to divert the path.
- Following the meeting the Council acknowledged that an application to divert the path was not likely to be received in the foreseeable future. The Council has not taken any further action to address the obstruction.
- Unhappy with the Council’s actions Mrs X complained to the Ombudsman. As part of her complaint, she provided information showing the Council was aware of the obstruction in 2022.
- During our investigation the Council found evidence Footpath Y should be recorded as a restricted byway on the definitive map. Any proposed diversion to accommodate the structure would need to take this into account.
Finding
- There has been delay by the Council acting on Mrs X’s report of the building obstructing Footpath Y. Mrs X made her initial report about the matter in early 2023 yet no resolution or substantive action has been taken by the Council. This is fault.
- On receipt of Mrs X’s report the Council sought to establish if the building has planning permission. The Council did not establish this until November 2023. While I appreciate planning matters can be complex, I do not see why it took the Council so long to find out.
- The Council visited Footpath Y in June and September, yet no further substantive action was taken. The Council’s enforcement policy says that after two visits a senior officer will decide what action to take. This did not happen.
- The Council had also failed to comply with the guidance given by the government on dealing with reports of obstructions on a PROW. It has not told Mrs X what action it is taking, nor has it acted to ensure removal of the structure or arrange for an application to divert Footpath Y.
- The fault I have found has caused Mrs X inconvenience as she cannot use Footpath Y. It has also put her to the avoidable time and trouble of pursuing this matter with the Council.
- The Council has decided not to remove vegetation blocking Footpath Y while the building remains. This means a decision on what action the Council will take on the building is necessary for it to decide what other works are required to Footpath Y. It is therefore important it decide what action it will take regarding the building.
- Lastly, I also note information provided by Mrs X shows the Council was aware of the obstruction prior to her raising it with the Council. This is evidence of further significant delay by the Council.
Agreed action
- Within one month of my final decision the Council should:
- Apologise to Mrs X and make a symbolic payment of £100 in recognition of the injustice caused to her.
- Within three months of my final decision the Council should:
- Decide what action it will take regarding the obstruction and write to Mrs X explaining its position.
- Complete a review of its handling of Mrs X’s report of an obstruction on Foothpth Y and explain what action it will take to prevent a recurrence of the delays identified in this complaint.
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman