Summary: The Council was not at fault when it decided not to attend a public inquiry to decide whether a developer could ‘stop up’ a right of way.

The complaint

1. ‘Mr G’ complains the Council failed to attend a public inquiry to decide whether a developer could ‘stop up’ a right of way as part of plans for a solar energy farm.
2. Mr G says this decision impacted on the local community. While residents opposed the order, they wanted support from the Council in doing so. They found attending the inquiry stressful. Mr G also says had the Council attended it could have clarified details of the history of the right of way in question.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Planning Inspectorate (Local Government Act 1974, sections 25 and 34(1), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. Before issuing this decision statement I considered Mr G’s complaint to the Ombudsman and supporting information he provided. This included a ‘stage two’ complaint report the Council issued in February 2024 setting out its findings on the complaint and his comments in reply.
8. I also gave Mr G and the Council chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence they provided, before finalising the statement.

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What I found

Background

9. The complaint centres around a proposed solar energy farm in the Council’s area. The proposal has proved contentious in the local community with many objections made to the Council when the developer sought planning permission. Some objections to the planning proposal centred on the impact of development on various public rights of way crossing the site.
10. The developer applied for a ‘stopping up’ order to close some of the rights of way. They applied to the Department of Transport under Section 247 of the Town and Country Planning Act 1990. This process requires advertising the proposed order and for the Department to consult with the Council. The public can object to proposed orders, as happened in this case.
11. Those objections meant a Planning Inspector was appointed to hear the case for the ‘stopping up’ order. They held a public inquiry. Some objectors from the local community spoke at that inquiry. Mr G said they explained at the public inquiry the complex history of the rights of way in question, which cross former open-cast mining land. The subsequent restitution of the land following the mining made the rights of way inaccessible. Instead, pedestrians have used another route that is not a designated right of way.
12. Following the inquiry’s completion, the High Court quashed a planning permission given by the Council to approve the solar energy farm. This was for grounds unrelated to its impact on rights of way. Consequently, the developer could not succeed with their Section 247 application, as the Planning Inspectorate can only grant a stopping-up order if the developer has planning permission.
13. The Council is now reconsidering the planning application and the developer has presented additional information in connection with that. It says that it will again seek a Section 247 order to stop up some of the rights of way.

Mr G’s complaint and the Council’s position

14. In his submissions to the Ombudsman Mr G has asked us to consider the following:

• Section 130 of the Highways Act 1980. This says councils should: “assert and protect the rights of the public to the use and enjoyment of any highway” (clause 1) and “prevent so far as possible, the stopping up or obstruction of” that highway (clause 3);
• that members of the public opposing the stopping up order wanted a Rights of Way Officer to attend the inquiry to support their objections and / or provide clarity about the complex history of the routes affected;
• that for objectors the inquiry was stressful as the developer had the support of specialist legal and planning advice;
• that the Council knew of the inquiry in advance; Mr G said a Rights of Way officer had told him it would attend;
• that he understood it did not put any comments in writing to the inquiry either.

15. In its investigation of the complaint, the Council said:

• it consulted its Right of Way team when it considered the developer’s planning application (I note the service did not oppose the development, but commented on potential negative impacts for those using rights of way crossing the site);
• that there was little it could add to these comments at any inquiry;
• that it was under no duty to attend the inquiry;
• that it therefore maintained a 'neutral’ stance about the inquiry; and
• that it had received no enquiries from the Planning Inspector during or following the inquiry.

16. In response to the draft version of this decision statement the Council clarified that it did also respond to the proposed stopping order as a consultee. In brief, its response to consultation said the Council did not oppose the stopping up order given the inaccessibility of the routes in question. But it favoured dedication of the alternative route used by pedestrians and conditions to protect that.
17. The Council has also said that its Rights of Way service has no record of ever assuring Mr G it would attend the inquiry. It has said it would not usually attend such inquiries.

My findings

18. In considering if the Council was at fault for the reasons given by Mr G, I have begun by considering Section 130 of the Highways Act. I agree this puts a positive duty on the Council to assert and protect members of the public who use and enjoy rights of way. However, this is in the context of unauthorised interference with the highway. For example, where a landowner obstructs a footpath with no valid consent.
19. The law does not preserve rights of way against all potential change over time. That is why it provides a route for stopping up in some circumstances, including to facilitate development. So, Section 130 does not trump Section 247 of the Town and Country Act. The latter provides an authorised route for the stopping up of rights of way.
20. This does not mean the Council can be entirely neutral in the face of any development plans that interfere with existing rights of way. Its Right of Way officers must be consulted on plans and give their opinion. That is what they did here.
21. It would have been helpful had the Council made that clear in its complaint response (which implied the Rights of Way officers only commented on the planning proposals). And unlike what it said in that reply, the Council was clearly not ‘entirely neutral’. Instead, the Council favoured a conditional stopping up order. I cannot see there is anything in its position that I could take issue with, given the Council gave clear reasons. It would in any event be for the Planning Inspector to scrutinise those comments as well as the opposing views from members of the public who objected to the order.
22. I also do not consider the Council was under any positive obligation to attend the inquiry. I recognise the developer was better represented but the Council had no duty to ensure an equality of arms for objectors. And I consider Mr G and other objectors may always have found the inquiry experience stressful, both because of its nature and because the developer had representation.
23. I also cannot find the Council gave a positive assurance to Mr G it would attend the inquiry, thereby raising his expectations. It denies this and where accounts differ in this way, we cannot prefer one account over the other.
24. It follows from all the above that I cannot uphold this complaint and find the Council at fault. But even if my view changed on this, I also could not say it resulted in any injustice to Mr G because the Planning Inspectorate did not make a stopping up order. So, it delivered the outcome Mr G wanted.
25. That said, I note the process will likely be repeated. In response to the draft decision the Council has clarified that it will respond to any further consultation and any supplementary requests for information from the Planning Inspector if made. It has also given assurance that if objectors again request its presence at the inquiry it will confirm in writing whether officers will attend.

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Final decision

26. For reasons set out above I find the Council was not at fault for not attending the public inquiry. I have therefore completed the investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman