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Saving our forests is seeing the wood for the trees

Cradle Lane

Shock News. Government Ombudsman decides not to investigate Maureen Comber's complaint.

But Maureen asks,

Says Maureen Comber "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. It would be reasonable for Mrs Z to use the process the law provides to challenge the status of the BOAT. The Ombudsman has no power to determine its status.
  2. it would have been reasonable for Mrs Z to use or to have used her rights of appeal to the High Court to challenge the temporary and recent permanent TROs since 2008. Arguments about the validity of the TRO including the way it was advertised are matters for the court to determine. Mrs Zís complaints are outside the Ombudsmanís jurisdiction.
  3. 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.

The complaint

1. Mrs Z complained that Hampshire County Council:

  1. Incorrectly registered a byway open to all traffic (BOAT) on the definitive map in the 1980ís prior to which it was differently recorded;
  2. failed to make permanent a Traffic Regulation Order restricting all traffic on a byway open to all traffic (BOAT) since 2008, making an unreasonable number of temporary TROís during that period;
  3. failed to consult neighbouring landowners and the correct parish council when it proposed to open the BOAT to motorcycles in March 2012.

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

What happened

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:

  1. Do nothing, which the Council did not favour given its earlier expenditure.
  2. Restrict motor vehicles except motorcycles, but impose a seasonal restriction enabling motorcycles to use the route during the summer months only. The Council considered this too restrictive as there was a lack of evidence to restrict motorcycle use.
  3. As b. but without the seasonal restriction all motor vehicles. The Council was to monitor the use to consider the surface of the lane.

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

  1. She suffered from the use of the path before 2008. But that is a matter she should have complained about then;
  2. The Council should have advertised the proposal to enable objections to be made without the need to appeal to the High Court. The Council advertises proposals on its website and has a form for representations. It appears the Council did as Mrs Z wished but she was unaware of it.
  3. Mrs Z disagrees that her complaint should not be investigated because she has recourse to other methods. The Ombudsman may investigate in these circumstances but I do not consider I should do so here. Mrs Z says that the Council delays in dealing with applications to modify the Definitive Map. If she makes an application and it has not been considered in twelve months she can apply to the Secretary of State.
  4. Mrs Z considers the Council should have addressed the matter when she raised it as a Councillor some years ago. The Ombudsman considers how members of the public are affected rather than any special relationship that might be expected between members and the Council.

Decision 22. I conclude that I should not investigate Mrs Zís complaint because:

  1. It would be reasonable for Mrs Z to use the process the law provides to challenge the status of the BOAT. The Ombudsman has no power to determine its status.
  2. it would have been reasonable for Mrs Z to use or to have used her rights of appeal to the High Court to challenge the temporary and recent permanent TROs since 2008. Arguments about the validity of the TRO including the way it was advertised are matters for the court to determine. Mrs Zís complaints are outside the Ombudsmanís jurisdiction.

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

Read the Ombudsman's provisional view with Maureen Comber's comments

The Governement should sycamore rider-friendly policy !

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