Footpaths and rights of way

This fact sheet is aimed primarily at people who have problems related to footpaths and rights of way that they regularly use, or which cross their property, and who may be considering making a complaint to the Ombudsman. Rights of way can include footpaths, bridleways and byways open to all traffic.

I am unhappy about the way the council is dealing with a disputed footpath near my home but the council has not taken the action I believe it should have. Can the Ombudsman help me?

Yes, in some circumstances. If you believe the council has made an error in carrying out its duties to assert and protect the right of the public to use footpaths and that this has caused problems for you, we may be able to investigate your complaint.

But if your complaint concerns one of the following we are unlikely to be able to help.

  • The service of a notice, where there is a right to appeal to the courts. This is because we would expect you to use the available remedy of the appeal to the courts if you wished to challenge the council’s actions.
  • A dispute about whether or not a public right of way exists across your land. There is a legal process for determining such disputes and we would expect you to pursue the matter through those proceedings.

If your complaint concerns one of the following we may take the view that we should not investigate:

  • The failure of the council to take action to secure the removal of an obstruction from a footpath or right of way. You can apply to the Magistrates’ Court for an order under s130 of the Highways Act 1980 requiring the council to take action and we might take the view that it would be appropriate for you to pursue that option.
  • Delay by the council in considering a request to add a footpath to the Definitive Map (ie to confirm that the public does have a right to use the footpath). Under rights included in the Wildlife and Countryside Act 1981 you can apply to the Secretary of State for an order requiring a council to deal with your request and we may take the view that this is the most appropriate course of action. 

How do I complain?

You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.

Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.

You should normally make your complaint to us within 12 months of realising that the council has done something wrong.

To complain to the Ombudsman phone our helpline on 0300 061 0614 (8.30am to 5.00pm, Mondays to Fridays). You will be able to discuss your complaint with one of our advisers. You can text us on 0762 481 1595.

You can complete an online complaint form

If you can consider my complaint what will the Ombudsman look for?

We consider complaints that the council has done something wrong which has caused you problems. So we look at what the council has done, whether there have been any errors or failures and if so how this has affected you.

Some faults we might find are that the council:

  • delayed in completing the necessary legal procedures after a decision had been taken to make an order to divert or to confirm a right of way
  • failed to take account of the existence of footpaths when considering the grant of planning permission
  • failed to follow correct legal procedures when closing a footpath, or
  • delayed giving, or gave incorrect advice in responding to questions about footpaths and rights of way.

What happens if the Ombudsman finds that the council was at fault?

It depends on the fault and what the consequences are for you. We may recommend that the council take action to put things right, for example:

  • reinstate signage for a footpath
  • set a timetable for a decision on the action to be taken in respect of a right of way, or
  • give correct advice on the extent of the council’s powers.

We may also recommend that the council offer you compensation for the time, trouble or expense you were put to in pursuing your complaint or for costs incurred because of the council’s errors.

Where we find fault with the council’s procedures we will often recommend that the council introduces changes so that the same problem does not occur again in the future.

Examples of some complaints we have considered

Mr B says there was fault by a council during the 1950s when it produced a Definitive Map that shows a footpath running through his property. As a result he has faced difficulty selling his property. The council does not accept that the evidence currently available proves that there was a error in the Definitive Map and does not consider the issue a priority in comparison with the many other rights of way issues awaiting investigation and decision. If Mr B applied for a Modification Order it would have higher priority. The Ombudsman declined to pursue an investigation of this complaint. We decided it would not be feasible to investigate whether or not there had been an error during the 1950s and that the council had offered a reasonable option for Mr B of applying for a Modification Order.
Mr C was a member of the Ramblers Association and had been access officer for the Association. He complained that the council’s delays in dealing with Modification Orders for several footpaths relatively near his home (approx 3-5km away) deprived him of the use of paths that he would have expected to use every few weeks. The council failed to make a decision on his claimed footpaths for several years but, once it reached a decision not to make the Orders, Mr C was able to appeal to the Planning Inspectorate against the council’s decision. His appeal was successful and in 2005 the Planning Inspectorate directed the council to make the relevant Orders. The council then unreasonably delayed publishing those Orders so that Mr C doubted he would be able to use the footpaths in his lifetime. We recommended that: the council apologise for the delays; provide funding of £500 for new footpath work in the area to recognise the impact on Mr C of delays, uncertainty and inconvenience in pursuing the matter; ensure that there were no further delays in processing the Orders; and review procedures to ensure that failures identified did not recur.

Other sources of information

The Gov.uk website has useful information on public rights of way: www.gov.uk/right-of-way-open-access-land/public-rights-of-way

Institute of Public Rights of Way and Access Management (IPROW). See www.iprow.co.uk

The Ramblers’ Association also has a range of advice and information available: www.ramblers.org.uk

Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.

The Local Government Ombudsman provides a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result the Ombudsman aims to get it put right by recommending a suitable remedy.

March 2013 

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