Summary: Mr X complained of the Council’s handling of a Definitive Map Modification Order which was submitted in 2018 regarding a pathway. He said the Council has failed to submit the order to the Planning Inspectorate for it to consider and therefore a decision has still not been made whether to add the pathway as a Public Right of Way to the Definitive Map. As a result, Mr X says the pathway is at risk of being restricted to users because a developer has submitted a planning application and intends to divert the pathway. The Council was at fault as it has not submitted the order to the Planning Inspectorate to date. However, there is no injustice to Mr X or other users as the developer could apply to divert the pathway regardless of whether it is recorded on the definitive map.

The complaint

1. Mr X complained of the Council’s handling of a Definite Map Modification Order (DMMO) regarding a pathway. He said the Council has failed to submit the order to the Planning Inspectorate for it to consider. As a result, a decision has still not been made whether to add the pathway as a Public Right of Way to the Definitive Map. This has caused distress, frustration and uncertainty as Mr X says the pathway is at risk of being restricted to users because of other ongoing planning applications.

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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 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
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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What I have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Whilst Mr X’s complaint is late, I have decided to exercise my discretion to investigate as there is evidence of continuing fault and delays processing DMMOs which has likely caused a wider injustice to others.

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council have an opportunity to comment on a draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

9. Councils must prepare and keep up-to-date ‘definitive maps and statements’ to show public rights of way (PROW) in their area such as footpaths and bridleways.
10. The law sets out how people may apply to their council for a DMMO to have a PROW recorded on the definitive map. This is under section 53 of the Wildlife and Countryside Act 1981. 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.
11. If the Council makes an order, it must advertise it. This allows for people to make objections against the order.
12. If no objections are made, the Council can decide to confirm the order itself.  However, if objections are made to the order, the Council must refer the order to the secretary of state or minister for confirmation.  This means that an inspector appointed by the Planning Inspectorate will decide whether to confirm the order on the basis of a public inquiry, hearing or an exchange of written representations.

Town and Country Planning Act Section 257

13. Councils have powers under Section 257 of the Town and Country Planning Act 1990 to make Public Path Orders for the diversion or stopping-up of footpaths, bridleways or restricted bridleways.
14. This type of application can only be made however where the Local Planning Authority is satisfied that the diversion/stopping-up is necessary to enable a development to be carried out in accordance with planning permission.
15. The granting of planning permission does not entitle developers to obstruct a public right of way. The diversion or stopping up of footpaths, bridleways and restricted byways is a separate process which must be carried out before the paths are affected by the development. It cannot be assumed that because planning permission has been granted that an Order under section 257 will invariably be made or confirmed. Development, in so far as it affects a right of way, must not be started and the right of way should be kept open for public use, unless or until the necessary order has come into effect.

What happened

16. A parish council applied for a DMMO using evidence gathered by Mr X and other local residents to add an unrecorded bridleway to the definitive map in 2018. Five months later the Council decided to make an order. The Council advertised the order and a member of the public objected to it. The Council contacted the member of the public seeking withdrawal of the objection, but this was unsuccessful. As a result of the objection the Council was required to send the order to the Planning Inspectorate for it to decide whether to confirm the order.
17. Mr X emailed the Council in 2019, 2022, 2023 and 2024 asking when it will send the order to the Planning Inspectorate for it to consider. The Council advised Mr X it is one of many orders awaiting submission and cannot give a timescale. This was due to the labour intensive nature of the process and the number of other orders waiting to be submitted.
18. In June 2024, a developer submitted a planning application with the intent to restrict and divert the pathway. Because of this, Mr X made a complaint to the Council. He said the Council had delayed submitting the order to the Planning Inspectorate for six years and now the path was at risk of being restricted and diverted. Mr X said until the Planning Inspectorate approved or rejected the DMMO no development or change to the footpath should take place.
19. The Council issued a final complaint response in August 2024 saying there is no legal deadline for the Council to submit an opposed DMMO to the Planning Inspectorate. It said due to limited resources, work required and the number of orders waiting to be submitted which pre-dated Mr X’s order, it cannot give a timescale for when the Council will submit it.
20. Mr X remained dissatisfied with the Council’s handling of the matter and complained to us.
21. In February 2025, the developer’s planning application was rejected. However, they have six months to appeal the decision to the Planning Inspectorate.

Council’s response to our enquiries

22. The Council says it has not submitted the order to the Planning Inspectorate as it is standard practice to prioritise orders where there is an ongoing disadvantage to the public or landowner. It says in this case, the public are continuing to use the pathway without issue. The Council has said that regardless of whether the pathway is recorded on the definitive map or not, the developer can still apply for a diversion order.
23. The Council received additional funding to reduce the backlog of DMMOs waiting to be submitted to the Planning Inspectorate. This additional funding was in place until December 2024. However, it acknowledged it could not deal with all cases due to the extent of the backlog. It says it used this funding to submit approximately 30 opposed orders by the end of January 2025. However, 29 orders are still awaiting submission and 27 of these have been waiting for submission for over a year. The oldest in the queue is 25 years old with someone making the application in 2000.

My findings

Delay in referring the DMMO to the Planning Inspectorate

24. The Council made the DMMO in 2018 and seven years later has still not submitted the order to the Planning Inspectorate. The Council says this is partly due to waiting for the outcome of the planning application. However, the developer did not make the planning application until June 2024. Therefore, the Council had six years prior to this to submit the order. Whilst there is no legal timescale to submit an opposed order to the Planning Inspectorate, the Council accepts it has a backlog of cases and limited resources to clear it. As a result, the Council has failed to submit the order since 2018 to present. The Ombudsman can make findings of fault where there is a failure to provide a service. The backlog of cases and limited resources has caused the matter to drift without meaningful progression which was fault. However, this delay has not caused Mr X any injustice as the developer could apply for planning permission and a diversion order even if the pathway had already been added to the definite map as a public right of way. Whilst this has been ongoing, the public have still been able to the footpath in its entirety.

Delay in referring other orders to the Planning Inspectorate

25. The Council has told us it still has 29 cases to submit to the Planning Inspectorate. 27 are over one year old, with the oldest being 25 years old. The delay in these cases is fault which will likely have caused an injustice to others.
26. We recognise the Council has taken some action to address the backlog and the delays this is causing. However, the Council no longer has the additional funding and it has not yet been able to eliminate the backlog of orders. This has been addressed in the recommendations.

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Action

27. Within one month of the final decision the Council has agreed take the following action:
1. Refer this decision to the relevant scrutiny committee to ensure the issues identified are considered in its annual work planning.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I completed the investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman