Section 9.1 - Case Management

This section covers the procedures that will be followed when dealing with reports and complaints. The procedures are guided by the new policies set out in the Statement of Policies for Rights of Way and the emerging Access Strategy. A summary flow chart and a checklist can be found in by following the links below:

Relevant legislation

Highways Act 1980

Section 130. Protection of public rights

Section 131. Penalty for damaging highway, etc.

Section 131A. Disturbance of surface of certain highways

Section 132. Unauthorised marks on highways

Section 134. Ploughing, etc. of footpath or bridleway

Section 135. Authorisation of other works disturbing footpath or bridleway

Section 137. Penalty for wilful obstruction

Section 137A. Interference by crops

Section 143. Power to remove structures from highways

Section 148. Penalty for depositing things or pitching booths, etc. on highway

Section 149. Removal of things so deposited on highways as to be a nuisance, etc.

Section 154. Cutting or felling etc. trees that overhang or are a danger to roads or footpaths

Section 164. Power to require removal of barbed wire

Wildlife and Countryside Act 1981

Section 59. Prohibition on keeping bulls on land crossed by public rights of way

9.1.1 Reports and complaints

A report can be received by email, letter, telephone or in person or a problem is found by a Countryside Access Officer without a report having been received. Officers will need to check;

A flowchart displaying a summary of the process:

flowchart displaying a summary of the complaints process

9.1.2 Initial response

The initial response will be to verify the problem by means of a site visit. The timing will be dependant on the nature of the problem (in accordance with a defined priority rating below). The complainant should be acknowledged as soon as possible, preferably within 3 working days in accordance with CLAMS. Acknowledge the report by letter if it is received in writing, or if made verbally tell the complainant it will be investigated.

Log the case by entering the details in the database and completing a report for the path file. The case should be categorised according to its source.

External Reports: Reports received from members of the public.
Formal Complaint Procedure: Reports received via the Departmental complaints procedure, Ombudsman or other formal procedure such as Highways Act 1980 S56.
Internal Reports: Reports identified by officers through their daily work.

[Pre-categorisation: Reports received prior to October 2001 are classified as pre-categorisation.]

Add sufficient copies of the Definitive Map, the report letter and acknowledgement to the file. When the report letter and acknowledgement refer to more than one path add copies of both letters to the file for each path. Update both the case file and the database as the case progresses.

Table 9.1.2 (below) shows the priority ratings for all likely occurrences (based on experience) and the respective time in working days within which an inspection should be made. These inspections will be the same on all routes. The priority rating is based on the following factors:

  1. Prioritising routes where public safety could be substantially improved
  2. Prioritising routes according to the level of use
  3. Prioritising routes where the County Council's actions could result in a significant positive impact on the network

Table 9.1.2: Priority ratings for likely occurrences

9.1.3 Inspections - collecting the relevant data

The Regulation of Investigatory Powers Act 2000.

This Act dictates what surveillance can be done by HCC employees in the course of their duties. It requires that any 'covert' surveillance is authorised in advance by an appointed senior officer (in our case the Head of Trading Standards). It is not expected that RoW officers will be involved in covert surveillance and therefore Officers should not undertake any activities which may be accused of being covert.

All inspections can and should be done in an overt way, wearing your ID badge, walking normally along the path and not lurking in the bushes, not using binoculars to view peoples activities from long distance etc. If you feel that some covert surveillance may in exceptional circumstances be required, you must have the approval of your manager and complete the application form (available from Trading Standards only). This is currently viewed as highly unlikely and/or extremely rare.

An inspection will be required in the majority of cases, this will be in accordance with the timings set out above. An officer should complete an inspection report as soon as possible after an inspection. Enter the inspection date and any relevant comments on the database. An inspection report should include:

If prosecution or direct action is a possibility an officer should inspect the whole length of the path as for a routine inspection, and should any other problem, particularly maintenance, be found, consider whether this should be resolved before proceeding and whether it will affect the case. The procedure for routine inspections is in Section 5.3

The Definitive Map and Statement is the primary source to be examined.

Where additional documentary sources may be required, for example, where the information on the Definitive Map is not consistent with what is on the ground, alternative sources may be useful (refer to Appendix D). Copies of any relevant document to be kept on the case file. When a document is examined and found not to be relevant a note to this effect to be made on the case file.

If appropriate consult the Parish Council/Meeting, user groups and the local County Councillor.

9.1.4 Subsequent action

After inspection, different time periods will normally be applied to implementing subsequent actions.

Any subsequent action will depend on:

Action will be either considered immediately, put into the current work programme (budget permitting) or held for future work programmes. Alternative arrangements may be made for the work to be carried out by the Parish Council or other local body.

Table 9.1.4 - Common problems and who is responsible.

Assess the evidence and decide on action required

Where the evidence shows there is no problem on the PRoW or the problem is not on a PRoW the reporter (complainant) is to be informed, and a copy of the letter or report of the telephone conversation or meeting added to the file. The case can then be closed by entering a resolved date on the database and filing the case file in the path file.

If the existence of a problem is confirmed by the evidence gathered, the responsibility for it will lie with HCC, the occupier or a third party. This is further detailed in Table 9.1.4 above.

When there is more than one problem on a PRoW, route or in the same locality they may be connected but of different responsibility categories. The problems should be dealt with as a whole, this may mean that high and low priority problems occasionally get dealt with together. Individual officers shall decide on further action guided by advice in the Good Practice Guide and the knowledge gained following an inspection. Where the issue is one of public safety it may be appropriate to contact the Health and Safety Executive (HSE).

Certain problems will demand specific procedures (see Section 9.2). The general procedure follows below.

Discuss with occupier

Where a PRoW crosses land in private ownership the subsoil is usually owned by the landowner. Where a PRoW runs between land owned by two different owners, the presumption is that their ownership boundary runs along the centre line of the PRoW. Sometimes neither landowner will claim ownership, in which case negotiation can be avoided.

The officer shall ensure the landowner, tenant or agent is correctly identified. This may involve a land registry search, consulting the electoral roll or consultation with the landowner, agent, neighbouring occupiers or Parish Council/Meeting. If this is unsuccessful consider serving a section 16 notice [LG(Misc.)A76] on the person most likely to be the occupier.

Table 9.1.5 Action in the event of non-compliance

Either:

Write to the occupier, enclosing a section 16 notice if there is any doubt as to whether they are the occupier (Contact CSD for advice on how to produce a s16 notice). Explain the problem and ask for it to be rectified within the period defined in Table 9.1.5. Enclose a copy of the DM showing the position of the problem.

Or:

Contact the occupier by telephone or in person, normally where the relationship is good and the RoW officer believes the problem can be resolved amicably and a letter is unnecessary. Explain the problem and its location and ask for it to be rectified within the period defined in Table 9.1.5. Complete a report immediately the conversation finishes and confirm, if necessary, in writing to the occupier.

If an on-site meeting is held, establish who is responsible for the land, how long he has held that interest in the land, and that you are speaking to the correct person. If the person responsible is a tenant, establish who is the landowner. Explain the problem and location and ask for the problem to be rectified within the period defined in Table 9.1.5. Complete a report immediately the meeting ends and confirm, if necessary, in writing.

If the problem may compromise public safety [Health and Safety Regulations], the officer should inform the occupier that the matter may be taken to the HSE in the event of non-compliance.

Re-inspect the site when the notice period has ended making full contemporaneous notes and taking photographs if appropriate (see Section 9.3). Complete an inspection report.

Keep copies of all correspondence on the case file. It may be necessary to inform the landowner that such records are kept and can be used in evidence, should the case be taken to court (Police and Criminal Evidence Act-PACE).

9.1.5 Further Action

Should the problem not be resolved on re-inspection consult with a solicitor from CSD reviewing the evidence, including documentary sources. Assess if further evidence is required. A letter should be written at this stage, and a copy retained as evidence (PACE). Decide whether further action is required, and if this should be direct action or court action. The decision should be guided by the two stage test for crown prosecution (Section 9.3). Is a solicitor's letter appropriate? Is there a need to enclose a section 16 notice [LG(Misc.)A76]?

Direct action

With the solicitor decide which section of HA80 will be used, s143, s149, or any other. Consider immediate removal under s149 if there is a danger to the public.

The appropriate notice to the occupier or report to the magistrates court to be served by the solicitor, with a copy being sent to the local County Councillor.

Re-inspect the site at end of notice period and if the problem is still not resolved get a quote to have the work carried out by a contractor. Place an order with the contractor.

If necessary arrange for the police to be present when the work is carried out.

Attend on site with a colleague when the work is carried out, photographing before and after. Both officers to complete a separate report.

Pass the contractors invoice for payment.

Recover the costs from the occupier. This entails copying an invoice to ITnet Finance who will pursue the cost recovery on the Council's behalf.

Court action

The decision to take legal (court) action is based on two tests further detailed in Section 9.3.

Close case file

Inform the complainant, County Councillor and other interested parties of the outcome of the case as necessary.

Close the case file by entering the resolved date on the database and file in the path file.