The Ombudsman's final decision
Summary: Mr B complained that the Council gave wrong information in response to the local search questions, as part of the purchase of his property. The Council said there were no rights of way crossing or adjoining the property. After moving in the Council said the definitive map was wrong and there was likely to be a bridleway going through the land, which walkers regularly use. We found fault with the Council. It has agreed to pay some of Mr B’s legal costs and an additional £1000 towards the cost of screening.
The complaint
Mr B complained that Dorset Council (the Council) gave incorrect responses to the questions in the local authority search, as part of the purchase of his current property: the Council said there were no rights of way crossing or adjoining his property. Since moving to the property he has discovered this is incorrect and many walkers walk along a lane which runs through his property on a daily basis. He says the Council failed to follow the correct procedure when updating the definitive map. This has caused him significant distress and affected the valuation of his property.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) 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)
How I considered this complaint
I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Definitive map and statement The definitive map is a legal record of public rights of way. The definitive map is accompanied by a statement which describes each right of way in greater or lesser detail. If the statement defines the position or width of a right of way shown on the map then that information is conclusive evidence of the position or width of the public right of way.
The law says that the definitive map and statement, taken together should be conclusive evidence rights of way. However, although the map provides conclusive evidence of the existence of rights, the reverse is not true: a way not shown on the map can still be a public right of way if its status can be proved.
The Council has a duty to keep the definitive map and statement under continuous review. Any person may apply to the authority for an order to modify the definitive map if they have evidence which shows it to be incorrect in some way. This is known as a Definitive Map Modification Order (DMMO).
What happened Mr B bought a property at the end of a lane leading to a farm. The land at the front of the property is bisected by the lane. The farm is no longer a working farm and the lane is owned by the farm.
In June 2020 the Council responded to the standard search questions as part of the purchase. It said there was no right of way either through the property or abutting it.
In September 2020 the Council responded to a query about the lane. The map it sent as part of its reply did not show a right of way along the lane bisecting the land at the front of the property.
In December 2020 Mr B moved into the property and noticed walkers using the lane. He challenged them about this and said it was not a right of way, causing some bad feeling from residents of the nearby village.
In January 2021 the Council informed Mr B that it had discovered a possible drafting error with the definitive map suggesting there was a bridleway along the lane. Mr B made a claim against the Council for £50,000 which he said was the loss of value of his property as a result of the bridleway. He enclosed a valuation from the agents who had marketed the property. In his correspondence he said: ‘I telephoned the definitive map team and was informed to my horror that there was indeed a public footpath/right of way running through my front garden and that it had been omitted from the definitive map.’
The Council in an email in February 2021 said: ‘As we discussed by telephone, there appears to be a error on the definitive map of rights of way and part of [the] Bridleway … has been omitted from the map, but is still described on the definitive statement. I attach a plan showing the omission. This error can only be corrected by legal order; a definitive map modification order, but there is a backlog of such cases so there will be a delay before it is corrected…I apologise for the effect this error has had on you, however, whilst the definitive map is conclusive evidence of the rights of way shown, is without prejudice to further or higher rights which may exist.’
In early March 2021 an officer visited the site as part of the Council’s investigation into the claim. They noted the landowner (the farm) had installed a bridleway gate on the lane which indicated an acceptance of a right of way down the lane.
The Council, in response to an enquiry from Mr B’s MP in early March 2021, said: ‘The Council did make an error in relation to the land search and the omission of the bridleway on the definitive map…’ In April 2021 the Council said in a letter to Mr B: Without evidence to the contrary I cannot agree that the presence of a footpath over a road which has been in existence for a number of years, is not on land in your ownership and which is clearly marked on the land registry title as belonging to [the Farm] would devalue your property. ….The Council accepts that there have been errors made….
In May 2021 the Council refused the claim. It accepted the definitive map was wrong and a bridleway did run along the lane between the two parcels of land owned by Mr B. However, it did not consider this affected the value of the property as Mr B alleged: ‘The road is clearly marked on the deeds as not being the [B’s] property and a google map image of the site would indicate that traffic movements across the property would be frequent and likely involve significant sized agricultural vehicles… The presence of the road allowing access to the farm would have been obvious to potential buyers as would the traffic expected to use it.’
Mr B complained explaining that they had relied on the information given in the search and the response to the highways query, to inform their purchase. They had extensively researched the farm and noted it was not currently a working farm, and was unlikely to be a viable farm in the future.
In June 2021 the Council offered to contribute an unspecified amount to hedges Mr B planned to plant as screening either side of the lane.
Mr B complained to us in early January 2022. He said he had taken legal advice and the likely cost of a court case could be £20,000. He also provided a copy of a bill for £720 representing the cost of extra work by his solicitor in February 2021 when the Council discovered the error. He said he would not have bought the property had he known about the bridleway as it fundamentally altered the setting and their plans for privacy. He said he consulted another surveyor regarding the impact on the property’s value and they confirmed the figure of £50,000, but it would cost them £500 to get this in writing.
The Council said in response to my enquiries that the existence of the DMMO facility acknowledges that definitive maps and statements are not completely accurate and cannot be expected to be. The Council cannot follow the prescribed legal process necessary to make amendments to the map if it is unaware that there is an error. In this instance it did not know that the bridleway was incorrectly recorded until after Mr B had purchased the property and began trying to prevent the public from using it.
It says there are many drafting errors on the map: it is aware of several hundred and has a large backlog of corrections applications to process. Generally, DMMO applications take priority but as this case is an exception it has already been prioritised and the Council hoped to start the process within a few months.
Analysis The Council accepted from January 2021 that it had made errors in respect of the definitive map and statement. Specifically, the information in the statement which describes the position of rights of way, showed that a bridleway extended along the lane bisecting Mr B’s property. It repeated its view in February, March and April that errors had been made. It said in April 2021 that the ‘footpath had been in existence for years’ indicating that it accepts that the lane bisecting Mr B’s property is an established bridleway.
I do not accept the Council’s view recently given to me, that it was not at fault, because it cannot conclusively say there is a bridleway there until it completes the modification process. The Council is responsible for maintaining the definitive map and statement and for keeping it under continuous review. The Council accepted the map is wrong on many occasions. So, while the information it gave in the search was technically correct, it was based on an inaccurate definitive map. It also appears the correct information was available in the definitive statement.
It also agrees that had the map been accurate it would have disclosed, in answer to the search question, that a bridleway ran along the lane adjacent to Mr B’s property.
The fault affected Mr B’s decision to buy the property. Because the definitive map does not show this section of the bridleway, many of the other resources available online do not show that the lane is also a bridleway. So, the correct information was not easily available elsewhere.
I cannot decide whether and how much the existence of the bridleway affects the value of Mr B’s property. That is a matter for the courts, to look at all the relevant factors including the current housing market, the existence of the farm and the road leading to it and the professional valuations. However, given the likely costs involved I do not consider it is reasonable for Mr B to pursue court action in this case.
But I do consider that the lack of information about the bridleway misled Mr B when he was deciding to purchase the property and I accept his view that he may not have gone ahead with the purchase had he known of it. The Council considers the bridleway does not make a significant difference to Mr B’s amenity because there is already a road there leading to a farm with the potential for frequent movement of large vehicles. However, I accept the fact it is also a bridleway means that an unknown and uncontrolled number of people can also use the road on a regular basis.
The fault has caused Mr B a significant degree of uncertainty and distress.
Agreed action
In recognition of the injustice caused to Mr B I recommended the Council, within one month of the date of the final decision: apologises to Mr B for the error; pays Mr B: £720 to cover the extra legal costs he incurred; £500 for the distress and uncertainty he has been caused; £500 towards the hedge screen.
The Council has agreed to my recommendations.
Final decision
I consider this is a proportionate way of putting right the injustice caused to Mr B and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman