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.