Shock News. Government Ombudsman decides not to investigate Maureen Comber's complaint.
But Maureen asks,
"How can they close the case without knowing if I have had a response from HCC?
"I am now convinced there is no justice in the UK in 2012, and probably not even if it can be afforded."
The Ombudsman's Verdict
The Ombudsmanís final decision: is that I should not investigate Mrs Zís complaint because:
1. Mrs Z complained that Hampshire County Council:
The Ombudsmanís role and powers 2. The Ombudsman considers complaints of service failure and maladministration causing injustice. The Ombudsman must consider whether the council has acted reasonably in accordance with the law, its own policies and generally accepted standards of local administration. Where a council has acted with maladministration, the Ombudsman considers whether injustice has arisen, and any appropriate remedy for that injustice.
3. The Local Government Act 1974 as amended says that normally the Ombudsman may not investigate a complaint unless it was made to her, within 12 months from the day when the complainant first knew something had happened that affected her. This restriction appears to apply to the TROís made between 2008 and 2011. I do not see any grounds which would lead the Ombudsman to investigate those early TROís now. Mrs Z did not suffer problems with motor cycles using the path between 2008 and 2011.
4. The Local Government Act 1974 says that the Ombudsman shall not investigate a complaint if a remedy exists or existed by way of proceedings in a court of law unless she is satisfied that it is or was not reasonable to expect a complainant to use that right and to take or have taken those proceedings. A right of appeal to the high court arose for each of the temporary TROís and the recently advertised permanent TRO. I consider it would have been reasonable for Mrs Z to use her legal right to protect her interests as a neighbouring landowner.
How I considered this complaint
5. I have considered the complaint and the documents provided by Mrs Z. I have viewed publicly available information.
What I found
6. Mrs Z recently sought records about the BOAT from various sources. She considers she has established evidence to show that the BOAT was not used by motor vehicles for the required period and should have been registered as a bridleway. The Council told her to apply for the map to be modified.
7. In 2008 the Council proposed to close the BOAT completely and members agreed. Mrs Z received a telephone call to ask her consent for a three month closure. The Council issued a number of temporary Traffic Regulation Orders (TROs) but did not make a permanent order. Mrs Z says she was not made aware of the temporary TROís that followed. After the third TRO Mrs Z sought information from the chief executive as she understood the consent of the secretary of state was needed. Mrs Z says that is contrary to the law as a permanent TRO should have been made after six months.
8. She also alleges that the path may be incorrectly designated as a BOAT. Mrs Z recently sought records about the BOAT from various sources. She considers she has established evidence to show that the BOAT was not used by motor vehicles for the required period and should have been registered as a bridleway. The Council told her to apply for the map to be modified. Mrs Z says the Council has a significant backlog for applications.
9. She sought an update regarding TROís. In October 2010 significant repairs were carried out to the surface which had previously deteriorated. After repairs the path was opened to walkers and cyclists. In May 2011 the path was reopened for use as a bridleway.
10. In April 2011 the Council has consulted on a proposal to reopen the BOAT to motorised vehicles and received many objections. In June 2011 it consulted on a further proposal to restrict vehicles with three or more wheels, and that motorcycles be restricted to using the route in the summer only. Following the report to the executive member in October 2011 the proposal was advertised requiring objections and representations to be made to the Council within 28 days.
11. In January 2012 the Council held a meeting of interested parties regarding the future of the Lane. Mrs Z was not invited although she understands the meeting was held in public. At the meeting it was acknowledged significant repairs had been carried out over the last 20 years. The Council had proposed the closure of the Lane to some motor vehicles, advertised this, and received objections. A significant number were objecting motorcyclists. The Councilís countryside officer outlined the options for the Council:
12. It was agreed at the meeting that the third option would be implemented, with motorcycle access from May 2012. Mrs Z is a neighbouring landowner and could be affected if the path is reopened. She also assists the British Horse Society. Mrs Z considers there was evidence of damage by motorcycles before.
13. In March 2012 the Council advertised its intention to make a permanent TRO hat restricted all motor vehicles except motorcycles with effect from 6 April 2012. It emailed this notice to Mrs Z.
14. Mrs Z says the notice is defective as it limits objections to a High Court appeal and does not invite objections in writing to the Council. She says the law requires notice to her as a neighbouring landowner and the correct Parish Council both of which have not occurred.
15. On 21 March Mrs Z was told by the departmental director that if she continued to complain about the Lane the Council would consider implementing its persistent complainant policy. On 4 April she was told the Council would reply to her complaint shortly but she came to the Ombudsman as it had not been answered in three months.
What should have happened
16. The Road Traffic Regulation Act 1984 sections 14 and 15, as amended, set out the Councilís powers for making TROís. It can make such orders to restrict or prohibit temporarily use of a road by vehicles of any class to such extent as it may consider necessary. Regulations set out how TROís must be advertised.
17. A road used as public path (RUPP) was one of the three types of public right of way (along with footpaths and bridleways) introduced by the National Parks and Access to the Countryside Act 1949. The Countryside Act 1968 required all highway authorities to reclassify RUPPs in their area Ė occasionally as public footpaths but in practice generally as public bridleways unless public vehicular rights were demonstrated to exist in which case it would become a BOAT.
18. Under rights included in the Wildlife and Countryside Act 1981 a person can apply to amend the Definitive Map if a right of way is wrongly recorded. A person can also apply to the Secretary of State for an order requiring a council to deal with a request to amend the Definitive Map. The Ombudsman normally expects someone to appeal to a government minister if they have a right to do so.
19. I have not considered the content of the notice the Council has published because its validity can be challenged in the High Court.
20. I have not considered the Councilís failure to reply to the complaint because Mrs Z has other methods to resolve the main issues of her complaint, as described above. But I will ask the Council to provide the response it promised to give in April 2012, so that Mrs Z can consider the options open to her.
21. In response to my provisional view Mrs Z said
Decision 22. I conclude that I should not investigate Mrs Zís complaint because:
The Ombudsman would not usually investigate a complaint about the way a complaint has been handled where she is not investigating the main issues of complaint as the complaint process alone rarely gives rise to significant injustice