Calderdale Metropolitan Borough Council (18 000 558)

Category : Other Categories > Land

Decision : Upheld

Decision date : 24 Sep 2018

The Ombudsman's final decision:

Summary: Ms X complains that the Council failed to protect a moor from destruction by mountain bikers. There was fault by the Council because it took insufficient enforcement action in the past. However, the identified fault did not cause Ms X a personal injustice that warrants a remedy from the Ombudsman.

The complaint

  1. Ms X complains the Council failed to protect a moor from destruction by mountain bikers. She also complains about the Council’s decision to remove ‘no cycling’ signs from access points to the moor.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

  1. If we are satisfied with a council’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)

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How I considered this complaint

  1. I considered the complaint and background information provided by Ms X and the Council. I discussed matters with Ms X by telephone. I sent a draft decision statement to Ms X and the Council and considered the comments of both parties on it.

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What I found

  1. Ms X is a walker who frequents a moor designated as a local nature reserve. The Council or its predecessor created a bye-law in the 1970s which prohibited the use of bicycle, tricycles or other similar machinery on any part of the moor. The Council is responsible for maintenance of the moor and enforcement of the bye-law.
  2. Contrary to the bye-law, mountain bikers and other cyclists use the moor. In doing so, they damaged the surface of footpaths across the moor.
  3. Ms X and others complained to the Council about a lack of enforcement of the bye-law. The Council accepted it had not enforced the bye-law but said this was because it did not have the resources to do so.
  4. In the past, wardens put up ‘no cycling’ signs at access points to the moor but these were removed in 2015. It appears senior officers decided the signs should be removed.
  5. The Council started a visitor survey on its plans for the moor in 2015. Ms X says the 2015 survey was flawed because:
    • The Council said a survey would be advertised in a local newspaper but then admitted in 2017 that this was not done.
    • The survey was not advertised in the main car park but in two smaller car parks.
    • The Council admitted misleading people about the survey in an article in a local newspaper and admitted the business link to the survey was too long.
    • A large proportion of walkers were unaware of the survey and could not get involved.
    • The mountain bikers used social media to advertise the survey and skewed the results.
  6. The Council’s final response to Ms X’s complaint was in May 2018. It said it did not have the resources to enforce the bye-law. It was concerned about exposing its officers to aggressive or confrontational behaviour when enforcing the bye-law.
  7. The Council said it was looking into how it can deal with mountain biking. It pointed out it was considering a draft management plan for the moor which is now open for public consultation. It intends to produce a new management plan by the end of 2018. It also advised Ms X that it would consider repairs to the footpaths in the moor this year subject to budgetary constraints.
  8. Ms X was dissatisfied with the Council’s response. She says the signs erected at entrances to the moor amounted to a minimum requirement to ensure the bye-law was enforced. However, the Council removed the signs. She queried whether the Council could rely on a possibility that mountain bikers are aggressive or confrontational to avoid enforcing the bye-law. Ms X would like the signs to be reinstated.

 

Analysis

  1. It is universally accepted by all parties that the Council did not actively enforce the bye-law. I find fault by the Council in this regard. Where we find fault by a council we must go on to consider the injustice to the complainant and a remedy for the injustice.
  2. Here, I cannot conclude Ms X suffered a significant personal injustice that warrants a remedy from the Ombudsman. The injustice caused because of the Council’s inaction applies to all walkers rather than Ms X in particular. I acknowledge Ms X is frustrated by the inaction of the Council and a delay in resolving the conflict between the interests of walkers and cyclists. But her frustration, while understandable given the identified fault by the Council, is not significant enough to warrant further pursuit of this matter by, or a remedy from, the Ombudsman.
  3. My view on injustice is also coloured by the fact the Council is presently reviewing the management plan for the moor. The plan will dictate how the moor will be managed. I understand there is a proposal for shared use of the footpaths by walkers and cyclists which, if approved, would change the nature of the bye-law and its enforcement. As the management plan proposal could change the previous enforcement regime at the moor the Ombudsman cannot now recommend a remedy for Ms X which requires adherence to the previous enforcement regime.
  4. Ms X and other walkers can influence the Council’s decision on the management of the moor in the consultation period. At present, the likely remedy for Ms X’s grievance with the Council lies in that process rather than a complaint to this service.

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Final decision

  1. I found fault by the Council but closed the complaint because the identified fault did not lead Ms X to suffer a level of personal injustice that warrants further action by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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