Bedford Borough Council Officers Like To Do It (Part 2 of 2) Ultra Vires

Wilden Footpath No. 40
(Click image to enlarge it)

Last year, Bedford Borough Council officers made a total of 20 public path orders to create, extinguish and divert public rights of way under the provisions of the Highways Act 1980. Officers have since abandoned 16 of those orders because they did not follow the correct legal procedures when making them. However, it now turns out that none of the 20 orders should have been made in the first place because the officers did not have the authority to make them.

 

Council officers have claimed that the powers to make public path orders have been delegated to them by the Planning Committee. They have not.

 

Ironically, this has come to light because officers decided to stop publishing public path order details thereby making it more difficult for the public to find out what officers were doing but serving to make me more determined to do so.

 

This year, Bedford Borough Council officers have made a total of 8 public path orders (seven under the provisions of the Highways Act and one under the provisions of the Town and Country Planning Act). I considered them to be invalid and objected to them for that reason.

 

My claim that all the orders were invalid because officers had acted ultra vires in making them was dismissed by Chief Executive Philip Simpkins when I wrote to him in October. He said he was “confident” that all was well.

 

This month I was politely asked if I would withdraw my objections to the 8 orders. A deadline of 17 November was set – otherwise, I was told “ … the Authority currently intends to submit those orders to the Planning Inspectorate Office for determination by an Inspector appointed by the Secretary of State.”

 

However, the penny seems to have dropped because I have now been informed that all 8 path orders will be abandoned. I await answers to my awkward questions which I’m told will be addressed within the next two weeks (that’ll be by 5 December).

 

That’s 16 orders abandoned, 8 orders to be abandoned and 4 that should have been abandoned but weren’t out of the 28 Highways Act path orders made over the last two years – probably a local authority record. And that’s only counting the Highways Act orders. I’ve not added up those made under the provisions of the Town and Country Planning Act.

 

Why am I angry about this?

 

For a start it’s an appalling case of incompetence leading to the unnecessary waste of resources. I doubt the cost could be calculated in terms of time and working hours but in financial terms it must amount to thousands of pounds.

 

Bedford Borough Council has the legal duty: “To assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.” (Highways Act 1980, Section 130(1).

 

But the Council’s officers choose not to, to an extent, so numerous paths are unavailable.

 

The same various powers can be used at the Council's discretion for other, non-statutory rights of way purposes – things that it can do but doesn’t have to, like diverting paths for instance. But officers choose to, to an extent. And then cock it up.

 

There’s no sign that council officers are concerned nor will there be until elected members and the public do more to hold them to account.

Bedford Borough Council Officers Like To Do It (Part 1 of 2) Behind Closed Doors

In 2013, the then Assistant Director of Environment and Communities at Bedford Borough Council approved public path order making procedures. It’s a well-written set of procedures contained in a three-and-a-half A4-sized page document offering: council officers clear, comprehensive working practices and; the public an explanation of a transparent, accountable process, snappily entitled: “Procedure for exercise of delegated powers in respect of public path orders under the Town and Country Planning Act 1990 (TCPA90), the Highways Act 1980 (HA80) and the Cycle Tracks Act 1984 (CTA84)". It’s a good and proper title but I’ll refer to it as the “Procedures Document”.

• “What’s delegated powers?” I hear someone mumble. 
• A local authority can delegate any of its functions to its officers. For example, it can direct that public path orders will be determined by council officers rather than, say, the council’s planning committee.
• Bedford Borough Council has done just that; it has delegated particular public path order making powers to nominated council officers as set out in the “Planning Committee Scheme of Delegations to Officers” which is contained in the Council’s Constitution. 

Back to the Procedures Document: where one of the procedures requires a Case Officer to submit a report relating to a public path order proposal to a Deciding Officer. The report sets out the case for or against a proposal with a recommendation that the proposal be approved or refused. At the same time (seven working days before a decision is scheduled to be taken) the Case Officer’s Report is published on the Council’s website. This is good practice and one that the Council can fairly claim is in accordance with the Local Government Transparency Code it says they adhere to.

Recently, following a review behind closed doors and without any consultation, a decision was taken to change the procedures. Despite requests for information, I haven’t been able to establish what the amendments amount to nor who approved them, although the immediate effects are that consultation periods have been reduced and reports have not been published. Since abandoning the Procedures document, in August I think, officers have administered the public path order process as they see fit.

In September, council officers made their first public path orders of the year – eight of them. No reports were published prior to the making of the Orders and none have been published since.

In October, when the path orders appeared, I requested copies of the reports. They can be mine to read, I was eventually told, but it would have to be treated as a request pursuant to the provisions of the Freedom of Information Act, the reports would be redacted, it could take up to 20 working days to supply them, and I’d have to pay £50. Yes Dear Reader, just £50 for something previously free, un-redacted and available before a decision was taken.

A compromise was called for (that’s me compromising with me) – fifty quid is a bit steep: I’d request just two for starters and save for the full set, to be told that there’ll be no charge for two reports. Buy eight for £50 or two at a time free strikes me as an odd business model.

It’s November and I now have three reports. I’d asked for Report Nos. 1 and 2 but was sent Nos. 1 and 3 (both incomplete) but have since received the missing parts and the absent No. 2. The next two are on order. I’ve been given different reasons at different times why the reports haven’t been published, none of which add up. I have had my own suspicion which is essentially that they’d rather do it without us watching.

It made me even more curious because I couldn’t help thinking that delaying tactics, among other things, were in play here. Or is it just me: CLICK

My curiosity led me to the Council’s Constitution and what I found was .. well, quite shocking but you’ll have to wait to find out until the next instalment later this week:

Bedford Borough Council Officers Like To Do It (Part 2 of 2) Ultra Vires.

Souldrop Village Green - Update

Knotting and Souldrop Parish Council developed part of Souldrop Village Green (VG42) as a car park – unlawfully, it seemed to me. And as a simple matter, rather than a legal one, I thought it was wrong that a council should spoil the very thing it had been given to protect.

 

I wrote about it HERE

 

Bedford Borough Council’s Planning Committee considered the issue at its meeting on 21st August 2017, and decided to defer their decision until after a site visit had taken place. At their following meeting on 25th September 2017, the Planning Committee resolved that the parish council’s retrospective planning application to develop the village green should be refused.

 

Well done that committee.

 

Bedford Borough Council has now issued an enforcement notice requiring that the village green be restored. You can see the notice HERE.

 

Well done Bedford Borough Council.

 

There’s a way to go yet; the parish council (who can appeal) is required to:

 

• Cease the use of the village green for parking of motorised vehicles.
• Remove the hard standing (loose shingle).
• Reinstate the land by laying top soil, then laying turf or sowing grass seed.
• Remove the resultant waste or debris.

 

Thanks to a brave Souldrop gentleman who was prepared to stand up for his (and others’) rights, there’s a better chance of Souldrop Village Green surviving in whole for the enjoyment of future generations.

Bedford Borough Council - Wasting Time

Wilden Footpath No. 6 - obstructed through gardens
(Click image to enlarge it)

Part of Wilden Footpath No. 6 cannot be used because it is obstructed through gardens as it has been for years. See HERE.

 

September 2016: Bedford Borough Council consults on a proposal to divert the path. See the consultation plan HERE. 

 

I reply by return: “The Open Spaces Society is very pleased to see your proposal and wholeheartedly supports it.” Other consultees including Wilden Parish Council, I know, are just as pleased.

 

October 2016: Consultation period ends.

 

When consultations are complete the procedure for the case officer is to compile, submit and publish a report recommending that orders should be made or not. A week after publication, another council officer approves or refuses the recommendation. If approved the way is clear to make orders which shouldn’t really take more than a couple of weeks.

 

January 2017: I write to ask about what I consider to be the inordinate delay.

 

The terse reply (in my own words) – "we only have a small team and we are busy doing other things as well. The two orders are being drafted,"
[An hour or so with a cuppa? A morning with more than one cuppa - max!]
"a decision to make the orders is expected within the next 6 weeks and orders made by the end of May."
[Whole morning writing a report? Cuppa? Ten minutes to read and approve it.]

 

May 2017. No report. No orders. No proper explanation or apology.

 

July 2017. I request information to be told that a report will be published within 4 weeks and the orders made by 25 August.

 

September 2017: End of year one. No report. No orders. No proper explanation (other than to say, after I contact the council, that they will get back to me in two weeks), No apology, and no footpath of course. I lodge an official complaint and wait.

 

It has to be done but I suspect that I am wasting my time just like the Borough Council is wasting it.

Bedford Borough Council - Wasting Public Money

Wilstead Footpath No. 8
Obstructed by stable block, shed, gates and fences

Bedford Borough Council has wasted thousands of pounds of public money by making an order to divert a footpath and then formally abandoning it because council officers forgot to tell anyone that an order had been made. Unapologetic and unrepentant, council officers plan to spend thousands more on a new order to divert the path.

 

The path in question is Wilstead Footpath No. 8.

 

Earlier this year I wrote about a proposal to divert the path. See HERE. What I didn’t know at the time of writing was that an order had already been made in 2013. No one outside the council knew either - because the council never gave notice of the making of the order which is a statutory requirement.

 

The path cannot be used because it is obstructed by the landowner. It seems reasonable to me that the council, whose legal duty it is to protect our public rights of way, should either take enforcement action against the obstructions or require the landowner to apply and pay for a diversion. It should not be for the council to assist a landowner to get round path law, and when it does choose to do so it shouldn’t cock up the procedure. Having wasted thousands, the council will use more public money to pay (to the tune of £3000 according to a council estimate) for a new diversion order.

 

See the council’s letter withdrawing the order HERE.

 

Despite what is said in the first paragraph of the letter, neither I nor the Open Spaces Society were consulted about the 2013 order (not that we have to be consulted). “The Authority” does not mean “Bedford Borough Council”; it means council officers on behalf of the council. And you won’t find any mention of costs, reasons for the delay or an apology for the cock up which I attribute to council officer incompetence and lack of elected councillors’ interest.

 

Regrettably, Bedford Borough Council has wasted more public money. On 4 August, “the Authority” also resolved to withdraw another twelve public path orders because they are flawed, with an officer resolution awaited on a further two flawed orders. The letter regarding the twelve (but not the cheque) is in the post I think.

Souldrop Village Green - Unlawful Development Update

Souldrop Village Green
(Click the image to enlarge it)

Knotting and Souldrop Parish Council has developed part of Souldrop Village Green (VG42) - unlawfully, in my opinion. I wrote about it HERE.

 

Following complaints (mine and one village resident’s) and requests to have the green restored to its pre-developed condition, Bedford Borough Council required the parish council to submit a retrospective planning application which was subsequently abandoned. A new, amended application has been submitted although it still retains the original application date – see Application 16/03052/S73A HERE. (I have found that the Council's website is unreliable so the link may not work.)

 

My view is that the application should be refused not least because it seems to me that the Borough Council does not have the power to authorise planning permission on a registered village green.

 

I make my case HERE.

 

Village and town greens are wonderful assets which should be treasured not spoilt. Souldrop Village Green should be restored to its former pre-developed condition.

Priorities

Looking towards Keysoe

As the highway authority, Bedford Borough Council has various legal powers which enable it to carry out its statutory public rights of way duties including: “To assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.” (Highways Act 1980, Section 130(1). The same various powers can be used at the Council's discretion for other, non-statutory rights of way purposes – things that it can do but doesn’t have to, like diverting paths for instance.

 

Our Council says it does not have sufficient resources to do everything it is required to, so complaints regarding its failure to fulfil its duties are not always followed up and resolved.

 

My argument is that if the Council doesn’t have enough resources then it must first carry out all its statutory duties before spending time and money (if any remain) to do the things it can but doesn’t have to. Simple right?

 

But our council officers (for it is they, not our elected members who decide) choose to do otherwise.

 

Last year, Bedford Borough Council made twelve public path orders to change the public rights of way network in the parishes of Thurleigh and Ravensden because the landowner wants the paths, some of which he has obstructed, laid out differently. However, the orders were flawed so they will have to be abandoned and the Council has said that they will make new orders. Let me call these: Jobs-to-Do - Nos. 1 & 2.

 

The Council also made public path orders in the interests of the landowner at the parishes of Stonely (Cambs), Pertenhall & Little Staughton. The orders were flawed as well so will have to be abandoned and the Council has said they too will be re-made: Jobs-to-Do – Nos. 3 & 4. Consultations have been carried out for separate public path orders at Bletsoe; Colmworth; Staploe; Wilden; Willington; Wilstead; and Wyboston: Jobs-to-Do - Nos. 5 to 11.

 

There is a small backlog of applications for Definitive Map Modification Orders (DMMOs). DMMO applications can be made by any member of the public where they consider there is evidence that a path should be added to or deleted from the Definitive Map and Statement. The Council is supposed to deal with applications within 12 months of receipt but hasn’t. And an opposed DMMO made in 2006 awaits action. More Jobs-to-Do. And more besides. I think you get the picture.

 

It would seem sensible to me, necessary even, to get to get rid of or get to work on the list of jobs outstanding. But no - our Council chooses instead to add another three jobs to its list. Last month consultees were “notified” that an order will be made to divert a footpath in the interests of a landowner at Wilden, another order will be made to divert a footpath in the interests of a landowner at Dean & Shelton (both to field edges where they will be fenced in), and an order will be made to extinguish a harmless bridleway at Oakley, at a cost to the public purse.

 

It seems wrong to me that Bedford Borough Council chooses to use its powers to change the public rights of way network as a result of applications from landowners (a discretionary function and at some cost to the public purse) rather than focussing on its statutory duties? And it doesn’t make sense to me that having decided to make path orders that the process is then put on hold whilst they propose making more.

 

The only reason for making a public path diversion order is that it would be in the interests of the public, or of the owner (or lessee or occupier) of the land crossed by the path, or both. Bedford Borough Council should sort out its priorities to attend to its statutory duties, and in the meantime impose a moratorium on the processing of applications for public path orders made in the interests of landowners.

Souldrop Village Green

Souldrop Village Green (VG42)
(Click image to enlarge it)

The Open Spaces Society is calling for local authorities and developers throughout England and Wales to make 2017 the year of the village green. See HERE

Meanwhile, Knotting and Souldrop Parish Council in Bedford Borough has spoilt one of their village greens by developing part of it as a car park. An area where children once played, and where families and friends relaxed, during village hog roasts for example, is now reserved for cars. Presumably, anyone can park there which may present separate problems in the future as well as land ownership issues.

Souldrop Village Green (VG42) was registered as a village green under the terms of the Commons Registration Act 1965. At the time of registration there was no evidence presented to show who owned the land so the then Bedfordshire County Council was directed to register the land as belonging to the parish council. The idea being that the parish council should look after the Green for the purpose it was intended, namely, exercise and recreation. Not car parking.

Here’s what The Planning Inspectorate has to say about village greens in their Common Land Guidance Sheet 2b – Works on Town & Village Green:

“Town and village greens (T&VG) are protected by section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876. Section 12 makes it a criminal offence to do anything which injures a green or interrupts its use as a place for exercise and recreation. Section 29 also makes it an offence to permanently encroach upon or inclose a green, or to build upon or disturb the soil of a green otherwise than with a view to its better enjoyment.”

Knotting & Souldrop Parish Council doesn’t seem to be bothered about acts of parliament, or about requests for information. The Borough Council wasn’t too bothered either but eventually required the parish council to submit a planning application for retrospective permission (the work to spoil the green was carried out in March 2015). It’s taken a year of pestering but the planning application has now been submitted. In my opinion, the application has been drafted sloppily and as a result is inaccurate and misleading but neither council is concerned about that either.

The apparent lack of interest in the preservation of the Green doesn't bode well. Nevertheless, I will object to the planning application because I believe that village greens are hugely important and that the right to use them should be jealously guarded. It's a great shame that the parish council doesn't feel the same way.

See Planning Application 16/03052/S73A HERE [Update 4th March: I find out by chance that the web link is ineffective because the online details have been removed from the Council's website. I'm informed that the application "has been put on hold due to an additional fee request to the applicant."]

Souldrop Village Green (Before)
(Click to enlarge the image)

Souldrop Village Green (Recently)
Up to 3 cars have been seen to park here.
(Click to enlarge the image)

Wilstead Footpath No. 8 and Bedford Borough Council Favours

Wilstead FP8 - Looking south east from the area of Point E on the Council's plan
(Click image to enlarge it)

A short section (approximately 230 metres) of Wilstead Footpath No. 8 cannot be used by the public because it is unlawfully obstructed where a stable and a shed have been built upon it, and where fences and gates have been erected to create paddocks at The Stables Equestrian Centre, Wilstead.

Council's Proposal Plan with Council Officer's annotations
(Click image to enlarge it)

 

Bedford Borough Council, as the Highway Authority, has a legal duty to protect the public right of way but has failed to do so.

 

What should have happened? The landowner or tenant should have sought planning permission for change of land use (from agricultural to equestrian use) and for permission to erect a stable and shed, hand in hand with an application to divert the footpath to enable the development (Town and Country Planning Act 1990, Section 257). But they did not. The Borough Council, as the planning authority, should have taken enforcement action but they did not.

 

What can the Council do? It could have the obstructions removed (Highways Act 1980, Section 143: the power to require the removal of a structure or other obstruction from a right of way). Or it could require the landowner to apply for a public path order to divert the footpath (Highways Act 1980, Section 119).

 

The Council has estimated that it will cost up to £3000 to process a public path diversion order which it can recover from the applicant. That sum does not take into account the Council’s costs for a public inquiry which would ensue should anyone object to an order (which I will). Those costs would fall to the tax payer.

 

What is the Council going to do? It is going to ignore the planning permission issues and says it will make a public path diversion order at the expense of the public purse.

 

Why is the council dishing out favours? I think it is outrageous that the public should be expected to pay for this diversion – a diversion which is only deemed necessary because the landowner has developed land without planning permission and has unlawfully obstructed the public right of way, and because Bedford Borough Council has failed to carry out its legal duty. I don’t know what the circumstances were that led to the planning application failure but accept that we are where we are and that it would be harsh to have the stable, shed and fences removed. It seems reasonable to me that as a first step (because there is no guarantee of success when making a public path order) that the landowner should be required to apply and pay for a public path diversion order.

 

Decisions about making public path orders are not taken by Borough Councillors – it is left to council officers. Therefore, I have asked the Mayor of Bedford Borough to intervene arguing that using limited public funds to pay for this proposal is wrong, and at this time is especially hard to understand.

 

Recently, the Mayor wrote to residents about the need for savings and consulted on options to cut services and or increase the Council Tax because of Government cuts to Council funding. Bin collections throughout the Borough were changed to fortnightly rounds rather than weekly to save money. The talk now is of council tax increases and reduced services. This is not the time to be providing free services unnecessarily. And there should never be a time for rewarding landowners who obstruct public rights of way.

 

The Mayor considers “that it is reasonable for the Council to fund the cost of making this diversion.”

 

Given the facts that I’ve outlined here, I fail to see how anyone can think it reasonable that the public should pay.