Summary: Mrs X complained about the way the Council handled the temporary diversion of a footpath near her home. We found the Council was at fault for not formally closing the footpath and publicising the temporary alternative route. However, it followed the correct process for the permanent diversion of the footpath and was not under a duty to consult Mrs X directly. We found Mrs X did not suffer any significant injustice as a result of any fault by the Council.

The complaint

1. Mrs X complained about the way the Council handled the temporary diversion of a footpath near her home. The diversion was needed for a development the Council granted planning permission for. Mrs X said the Council did not properly consult her and she lost the chance to comment. She believes the temporary diversion will become permanent as it is not possible to reinstate the footpath.
2. Mrs X said the diversion is less safe for pedestrians and is steeper. It has also led to more traffic, and causes access problems for larger vehicles. Vehicles have hit Mrs X’s wall, pulled out branches from her hedge, and brought down a tree. This has caused her distress.
3. Mrs X would like the Council to give residents the opportunity to comment on its plans. She would also like the Council to consider changing the road name, as this would stop unwanted traffic and reduce the problems.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. As part of the investigation, I considered the complaint and the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mrs X 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

Closing and diverting a footpath

9. Councils can stop up or divert a footpath under Section 257 of the Town and Country Planning Act 1990, if they are satisfied it is necessary to enable an applicant to carry out development in accordance with planning permission. Councils can create an alternative highway to use as a replacement under the same legislation.
10. For development authorised by planning permission, it is the responsibility of the local planning authority (in this case the Council) to issue an Order authorising the stopping up or diverting of a footpath.
11. Councils can also stop up and divert a footpath by issuing an Order under Sections 118 and 119 of the Highways Act 1990. Councils can use this legislation where they consider it is expedient to stop up a footpath as it is not needed, or to divert a footpath in the interests of the landowner or occupier.
12. Government guidance confirms that where a council closes or diverts any right of way it must publicise its intentions and allow the public to oppose the Order.
13. If no member of the public objects, councils can confirm the Order themselves. If they receive objections, they can ask the Planning Inspectorate to confirm the Order.

What happened

14. A developer (the applicant) applied for planning permission to develop land near Mrs X’s home in 2018.
15. Some residents objected to the plans because access to the development site is narrow and not suitable for vehicles. They were concerned that removing existing bollards from the road would increase traffic.
16. The Council’s report on the application describes the road as a u-shaped, single track, narrow road with a collapsible bollard allowing access for emergency services and residents. The applicant proposed to move the bollard further up the road beyond the vehicular access for houses. The Council considered this was acceptable as it would still restrict access in the same way. The Council also considered the road is wide enough for one car to access and exit the site and was acceptable for the proposed use.
17. The Council’s report also highlights the plans require the applicant to realign an existing public footpath, which the applicant would need separate permission for. The Council considered the proposal would mean temporary disruption to the footpath during construction, but as this was temporary, and the right of way will not be lost, the Council did not object. The Council’s planning committee granted planning permission.
18. The applicant drew up plans to close part of a public footpath running through the development site in July 2023. This included two alternative routes while part of the footpath was closed. The applicant then asked the Council to issue an Order confirming this.
19. The applicant also had to confirm they had sought permission from all other landowners affected by the proposal.
20. Mrs X complained to the Council that it did not consult her on the closure and diversion of the footpath. She said the Council should have consulted her as she lives close by.
21. Mrs X said she had not seen the consultation advertised in the local press. And she asked when the Council would erect notices of the closure and diversion, giving the public the chance to comment. Mrs X was concerned diggers on site will create a hazard if they cross the footpath. She asked why the Council had not erected signs saying the footpath is closed.
22. The Council said the applicant is applying for a temporary stopping up of the right of way across the site during the works, and alternative routes will be available. It said this should resolve any health and safety concerns. The applicant will also apply for a permanent diversion of the footpath which the Council will advertise in due course.
23. Mrs X said the footpath diversion will be permanent, and it is misleading to say otherwise.
24. The Council explained the applicant will need to make a separate application before it permanently diverts the footpath. The Council said it will advertise this. It said what is currently shown is a temporary diversion during construction.
25. Mrs X contacted the Council again in late June 2024 after seeing signs for the diversion of the footpath. She asked if this was a permanent diversion. She said she expected to be consulted, as she is a near neighbour with historic access over the footpath, and she also wrote to the Council previously with concerns. She said the signs are not in a prominent enough location, so asked the Council to move them and extend the deadline for objections beyond July 2024.
26. The Council said it placed several notices in the area, and it published the plans in a local newspaper. It did not agree to extend the deadline.
27. Mrs X then sent her objections. She said her neighbour received a letter from the Council, but she did not, and could not comment on future use of the footpath. She said the Council had not considered the impact on her or sought her views. She said the public, especially women walking alone, may find the new layout less comfortable as the open aspect is lost. She said the footpath was enjoyable to use before the current diversion.
28. The Council acknowledged receiving Mrs X’s objections but did not offer any comments.

My investigation

29. Mrs X told me she suffered worry and distress about vehicles hitting her property. There was also some minor damage caused. She considers traffic will continue to be worse once the development is complete, and she worries a vehicle may hit a pedestrian.
30. The Council told me it did not temporarily divert the footpath. It closed a small section of it for construction works to the new development and put a temporary alternative route in place. It said it is not required to consult residents whose properties were not directly affected. It said Mrs X’s neighbour may have contacted the Council rather than the Council contacting them, as it had no duty to consult her neighbour either.
31. However, the Council told me, due to a breakdown in communication, it believed it had processed the footpath closure application. It should have advertised this in the local press. Unfortunately, this was not the case, meaning the temporary closure was unofficial. Though the Council said it placed notices of the temporary routes around the development site and on notice boards.
32. The Council said Mrs X is wrong to assume the alternative route of the footpath will be permanent. It said the alternative route is separate to its plans to permanently divert the footpath. It also said it gave Mrs X the chance to comment on the permanent diversion as part of its wider public consultation.
33. The Council acknowledged the alternative route is steeper, but said it anticipated local people would know their way around. It said a local group that helps look after the park and surrounding area came up with the alternative route. It also said its plans for the permanent diversion will be different.
34. The Council said the temporary closure of the footpath only impacts pedestrian traffic, not vehicles. Any issues with vehicles damaging Mrs X’s property need to be taken up with the responsible party.
35. The Council does not consider Mrs X has suffered any significant injustice because the temporary footpath closure does not impact her home. She will not be impacted by the permanent diversion either. Her property may be adjacent, but is at least 140 metres away. It said the only impact was on local walkers. The Council has no plans to divert the section of footpath near or adjacent to Mrs X’s home and its status as a footpath is not proposed to change.
36. The Council told me it will consider changing the name of a road where there have been new developments, confusion about naming/numbering, or requests from the emergency services. It said two thirds of rate payers must be in favour of the change, and there is a fee. There could also be associated fees for changing mortgage deeds and tenancy agreements.

Analysis

37. The Council did not make an Order to close or temporarily divert the footpath. The fact there was no Order means there was no formal approval of the footpath closure or temporary diversion. That was fault.
38. However, I did not see evidence the relevant legislation places a duty on the Council to consult individuals as Mrs X suggested.
39. The Council accepts it should have publicised the temporary footpath closure and alternate route, but did not do so. Although Mrs X lost the opportunity to comment or object to this beforehand, she was aware of it and did not lose any access to her home or the surrounding area. Mrs X said the Council did not erect notices in prominent locations. However, Mrs X saw the notices and was able to object to the new permanent diversion application. I therefore do not consider she suffered any significant injustice in this regard.
40. I can understand why Mrs X said the footpath diversion is not temporary. But while part of the original route of the footpath will be lost, the alternative route first put in place was temporary. The Council has not yet approved a new permanent route for the footpath.
41. I appreciate Mrs X’s concerns about traffic and vehicle access. However, the Council and relevant highway authority considered this as part of the planning application process. They decided access was sufficient for the development and the impact on traffic would be negligible. The fact private vehicles have damaged Mrs X’s property is not an injustice arising from any fault by the Council. It is up to Mrs X to decide whether she wishes to apply to the Council to change the name of the road.

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Final decision

42. I completed my investigation. I found the Council was at fault for not formally closing the footpath and publicising the temporary alternative route. However, it followed the correct process for the permanent diversion of the footpath and was not under a duty to consult Mrs X directly. I found Mrs X did not suffer any significant injustice as a result of any fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman