Summary: Mrs B complained that the Council’s committee did not follow the correct procedure nor properly consider its decision to allow an off-road cycle track on a recreation ground near her house. Mrs B also complained that Members had not declared conflicts of interest. There was no fault in how the committee reached this decision, nor in the Members’ conduct. The Council took too long to respond to Mrs B’s complaints and it has apologised to her for this.

The complaint

1. The Council did not properly consider its decision to approve an off-road cycling track. In particular Mrs B says that:
• The Council members did not have proper regard for the officer’s recommendation to consider other sites, and did not take account of all the relevant issues including environmental and archaeological concerns, the impact on the flood works and flood risk, concerns about antisocial behaviour, and construction safety issues.
• Members failed to declare an interest and those that did declare an interest remained in the meeting.
• The Council only carried out the required archaeological, and wildlife and botanical surveys after it had made its decision, and still has not carried out the ecological survey.
• The Council failed to answer questions she raised at the meeting, and failed to deal with her complaint properly.
2. Mrs B says that the impact on the community will be immense, and she has concerns about wildlife habitat and public safety. Mrs B also says that it has been very stressful dealing with the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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What I have and have not investigated

5. I have investigated the Council’s decision to approve the cycling track.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. The Council has now completed the track and it is open for use. During the course of my investigation, Mrs B has complained about the impact of the track, including antisocial behaviour, harm to wildlife habitats, and flooding. I have not investigated these because these happened after Mrs B complained to us. We would expect Mrs B to complain to the Council about this and if she remains dissatisfied, Mrs B can then bring a new complaint to the Ombudsman.
7. Mrs B has also complained about unsafe practices during construction of the track. These issues are usually dealt with by the Health and Safety Executive and I understand Mrs B has complained to it. As such I have not investigated this part of Mrs B’s complaint.

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How I considered this complaint

8. I considered evidence provided by Mrs B and the Council, as well as relevant law, policy and guidance. I have read the Council’s reports and viewed a recording of the key committee meeting.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What happened

10. The Council had agreed to install a cycling track on a nature reserve near to Mrs B’s home. The site of the track is an area at one end of a larger recreation space. The track will be close to residential streets, with a brook separating the open space from the housing. There had been flood alleviating work on the brook, and also improvements to encourage wildlife habitat in that area. There was significant public opposition to the proposal.
11. The Council’s committee met to consider the proposal at the end of January 2024. The Council officer’s report to the committee recommended that the Council defer the decision so that it could investigate other locations. The officers intended to report back to the committee in June. The officer’s report said:
• Planning permission is not required and the Council had carried out a public consultation.
• An assessment of play facilities found that there is a need for facilities in this area for older children/ young people.
• A wildlife consultancy had done a preliminary appraisal of the impact on protected species and had no concerns but made some minor recommendations.
• The track will be on an historical site. The Council would need a wider understanding of the archaeological potential of the site. It would also need to consult Historic England.
• There is no allocated parking and it is likely that users will park in the nearby residential streets, but it has good pedestrian and cycle access, and the public footpath that runs through the open space is part of a National Cycle Route. There is access for emergency vehicles but responders would need to manage the final part of the journey by foot.
• There are no public toilets.
• There had been an online survey that was broadly in support of the track. However, the report set out the objections and also suggested a degree of caution as it does not rely solely on surveys, and there was an ongoing investigation into whether multiple devices had been used to respond to the survey.
• Given the local objection and some practical challenges the Council officers recommended the committee defer its decision to allow them to look at alternatives. The report also said it did not recommend approving the proposal without further scoping work. The report listed other locations it intended to investigate.
• The report set out the public consultation comments in full.
12. At the meeting two members declared an interest as they are part of a local activity group that campaigns for better leisure facilities.
13. Mrs B spoke on behalf of the residents. Her concerns about the site included:
• The County Council had recently carried out work to enhance the wildlife habitat, including wildlife housing and large areas of wildflower planting in that exact part of the open space. The track would put this at risk.
• The County Council had also carried out work to the adjacent brook to alleviate flooding to the nearby residential area, building the track would require removing some of the flood prevention measures.
• The site would not be usable for part of the year due to waterlogging.
• It is listed as a site of historic interest by Historic England.
• Construction traffic would find it difficult to access the site and the park would need to be closed.
• There is no car parking or emergency vehicle access.
• The consultation was too broad and vague, and was open to abuse as it allowed a person to submit multiple responses.
• As the Council did not need full planning permission, it had not consulted the statutory bodies on flood risk and wildlife habitats.
• It is not suitable for wheelchair users as there is no suitable parking space.
• A report by the Police had advised against benches in that location as it may encourage antisocial behaviour.
14. A Member suggested that the committee amend the officer’s recommendation. Rather than defer the decision and explore other sites, the Council should approve the proposal on the condition that officers work with residents to address concerns and instruct officers to investigate further locations alongside this site. The proposal was seconded by a member and the chair of the committee moved to debate the proposal.
15. I have read the minutes of the meeting and also watched the video recording. The committee heard from the speakers for and against the proposal. It considered the officer’s presentation, and asked various officers questions. The chair of the committee took advice on how to proceed with the amendment.
16. Members referred to the Council’s assessment of facilities, referred to the concerns of residents, officers and Members; the need for an archaeological survey; how the proposal might fit with building other cycle tracks in the district. Some of the Members called for progress on that day with reference to an upcoming election. Other Members raised concerns about the location, emergency services access, the impact of flooding, and that they had not seen the ecological survey.
17. The Committee decided to approve the proposal on the condition that the Council work with residents to address concerns, and also that the Council investigate other sites. Officers agreed to return to the committee with a report on investigations into the alternative sites.
18. Mrs B initially complained about the conduct of a Member at the beginning of February. This was that a Member had been unprofessional, had not made a sound decision and had acted with bias. In line with its Members’ Code of Conduct, the Council consulted the Independent Person for Standards. They and the Council decided to resolve the complaints informally.
19. The Council responded to Mrs B in mid-March. It decided that the Member had not insulted Mrs B or others objecting to the proposal, but may not have shown the necessary respect to them and so on the Council’s recommendation the Member apologised to Mrs B.
20. In March, Mrs B spoke at a meeting of the full Council on behalf of the residents. She raised that the committee had not acted in accordance with the procedures because it had voted on a motion that the public had not been aware of. Mrs B also set out the residents’ concerns about the track.
21. Mrs B further complained to the Council and the monitoring officer on 22 March 2024. Mrs B also sent the Council a formal letter to say she was considering court action to challenge its decision. The Council responded fully to the letter. The Council has also told me that it has exchanged a high number of emails with Mrs B.
22. The Council acknowledged Mrs B’s complaint but failed to respond. Mrs B complained to the Ombudsman and we asked the Council to complete its complaints process.
23. Mrs B complained that:
• The Council had not considered the issues properly. It did not give good reasons for not considering the officer recommendation to defer the decision. The public was not told of the amendment in advance, and this breaches protocol.
• Some members had said they just wanted it decided rather than defer that decision because it had gone on too long, or that they may not still be on the committee due to elections due shortly.
• The Council had said it would respond to her concerns about disabled access but it had not.
• The Council required a botanical survey but part of the site was mown before this could happen.
• A member of the public was overheard thanking the Member who proposed the amendment for inviting him to the meeting. The same person is the spouse of a Member.
• Two Members are associated with a local interest group and one of these helps run some of the projects. They did not declare this nor remove themselves from the vote.
• A further two Members declared their involvement with the local group but did not remove themselves from the vote.
• A member of the public who had spoken in favour of the cycle track in that location was seen celebrating with Members immediately after the meeting.
24. The Council responded on 22 July 2024. It said:
• It apologised for the delay in responding to the complaint, and it had decided to treat this as a stage two complaint.
• It has considered her complaint but concluded that the committee was entitled to take the decision to approve the proposed track subject to engagement with residents. The Council would refer the matter back to the committee if it thought that the proposal would cause unreasonable harm or financial impact. However, it has not found this. It acknowledges that Mrs B and other residents have a different opinion on the surveys or whether the project should go ahead, but the decision was taken properly.
25. The Council’s monitoring officer sent Mrs B a separate response to her complaint about Members’ conduct. The monitoring officer had discussed the complaints with the independent person, but both concluded that there was no evidence of a breach of the Members Code of conduct. In particular:
• The committee can amend or vote against the officer’s recommendation and does not have to give any prior notice of this.
• Members can have a predisposition to cycling but not be predetermined or biased. The local group is a community action group. There is no evidence that other Members were a member of that group. If they are they do not have to declare an interest. This is because the cycle track is a council project, and not connected the local action group.
26. Mrs B does not agree with the Council’s interpretation of the Code and says Members should have declared their interest in the action group and removed themselves from the discussion and the vote. Mrs B also reiterated her complaint that the Council’s committee reached its decision in an irrational manner.
27. Mrs B later found out that the Council had not carried out the required surveys prior to making its decision. She says the Council told her it had. Mrs B also says that the Council still has not explained how this track can be used by disabled people when there is no wheelchair access to the site.
28. In the meantime, the Council had produced a mitigation plan. This set out concerns that had been raised and what measures the Council has taken, or intends to take to mitigate these. The Council said this plan had been developed by considering the issues raised at various meetings (including a public meeting in June 2024), representations made by ward councillors on behalf of residents, completing additional surveys, and consulting with partner agencies.
29. The mitigation plan says:
• The contractor will provide a trackway to minimise surface damage during transportation of the materials.
• The Council has considered the residents’ concerns that the track will lead to flooding and water run-off. The Council consulted the Environment Agency and it confirmed it had no concerns about risk from the track and it is outside the flood plain. The Land Drainage Partnership recommended the contractor produce a water management statement. The specification requires three soakaways to disperse surface water. The Council will agree the final design of this before the work starts.
• It has investigated and confirmed where the existing stormwater drain is. It is within ten metres of the track and so the Council will discuss this with the contractor to make sure it keeps a safe distance from the storm drain.
• Residents were concerned about antisocial behaviour. The Police had recommended that there is no bench so that people do not congregate to cause problems. The Council considered this but decided that a bench is needed to make sure the site is accessible. The Council said it will engage with users of the track to encourage positive use, and will provide new litter bins.
• The Council considered problems with noise from the track when used. It had completed a noise assessment of cycle wheels against the proposed tarmac track. It decided that this would create a minimal and acceptable noise, as would the noise from those using the track. The Council will put up a sign asking users to respect residents, It will also commission a monthly noise nuisance assessment for a six-month period, and take any necessary action.
• The Council set out a site plan for the construction traffic and deliveries will be restricted to avoid peak travel times.
• The Wildlife Consultancy had completed an ecology assessment in November 2023. It referred to mammals crossing the site, birds nesting in the nearest trees and bats foraging, but that there was no obvious issue caused by the track, and it did not need to carry our further surveys. It noted that the work did not include disruption to the hedgerow or nesting habitat.
• The ecology assessment acknowledged that use of the track may impact on wildlife using the site. The Council’s plan says the design will encourage entry from the wildlife corridor. It will monitor this and consider natural barriers such as hedges if needed.
• The Consultancy also completed a botanical survey and concluded that there were no objections to the track on this basis. The Council decided that where the existing wildflower swathe will be replaced and enhanced in another part of the park and the surrounding grass will be left unmown. It considered it likely that these measures will increase biodiversity in the surroundings overall.
• The site is part of an ancient monument and battlefield site. The Council commissioned a survey but no archaeological assets were found.
• Residents had raised concerns that as there was no dedicated parking, users will park in the nearby residential streets. The Council consulted the Highways Authority which had no objection to the track due to the existing pedestrian and cycle paths to access the park. The Council also identified access for emergency services.
30. The committee then met again. Officers presented additional sites to that already proposed (rather than an alternative). Four Members declared that they were also members of the local activity campaigning group. The officers set out the Council’s engagement with the residents and the mitigate plan.

Findings

Complaint that the Committee Members did not have proper regard for the officer’s recommendation, and did not take account of all the relevant issues.

31. There are two parts to this complaint: whether the Council’s committee followed the correct process and whether Members considered all the relevant issues.
32. At the January 2024 committee meeting a Member proposed an amendment to the motion. This meant the committee did not vote on the officer’s recommendation to defer the decision, but voted on the amended motion to go ahead with the cycle track at this location subject to further work with residents to mitigate the impact of the track and to also investigate other sites.
33. There was no fault by the Council or its committee when it did this. The Council’s constitution says that an amendment must be proposed and seconded. The committee did this. The Chair of the committee consulted the clerk throughout the meeting to make sure that it was within the rules.
34. The committee thoroughly debated and considered whether to defer the decision as recommended. It asked for significant clarification from officers on the consequences of deferring in terms of the budget and the overall likelihood that the proposal might never go ahead, and whether a suitable alternative site if found, could become a second track.
35. I appreciate that it can seem wrong that the committee did not vote on the officer’s recommendation, but the Council did not have to give the public advanced notice nor allow a further opportunity to address the amended motion.
36. I have also looked at whether the Council properly considered all the relevant factors when its committee decided to go ahead with the cycle track. I have read the officer’s report which sets out all the issues, including the objections and I have watched the video recording of the meeting.
37. It is clear that the committee heard from all sides and asked officers in-depth questions. It was for the Council and its committee to decide whether to go ahead. It properly considered concerns about antisocial behaviour, flooding, wildlife and ecology. There is no basis for me to criticise the overall decision.
38. I also note that following the meeting, the Council produced a detailed mitigation plan. Again, this shows that it properly considered the residents’ concerns.

Members failed to declare an interest and those that did declare an interest remained in the meeting.

39. Mrs B complained that some Members should not have been part of the debate and should not have voted because they are members of or closely linked with the local action group that was in favour of the cycle track.
40. The Council considered Mrs B’s complaint but decided that Members had acted within the Code of Conduct. I agree that on balance there was no fault by the Council’s Members or how the Council dealt with complaints about this.
41. It is a general principle of the Members’ Code of Conduct that a Member avoids conflicts of interest. A Member needs to register certain interests, but not that they are part of the local action group unless they are in a position of control or management. As well as a register of interests, a Member is personally responsible for deciding whether to declare an interest in a meeting.
42. The Code sets out various circumstances where it expects a Member to declare an interest and to remove themself from the vote. These include where the matter:
• directly affects a financial interest or relates to the wellbeing of a registrable interest;
• directly relates to a non-registerable interest but it affects the financial interest or wellbeing of a close relative or associate;
• affects the wellbeing of the Member, their relative or a body they are a member of, more than other inhabitants.
43. The location of the cycling track was contentious and I can see why Mrs B and other residents were concerned that some Members were part of, or associated with the local action group, and that one Member’s spouse led activities for the group.
44. However, these were not registrable interests and it was for each Member to decide whether to declare this and whether to vote. The track is a Council project and although it benefits the aims of the local action group, it is for use by the public in general equally. As such there was no requirement for the Members to declare conflict of interest or to abstain from voting.
45. I have looked at how the Council dealt with complaints about the potential for conflicts of interest and a complaint that a Member had been rude to residents at the meeting.
46. The Council has a procedure for dealing with complaints about a breach of the Members’ Code of Conduct. This says the Council’s monitoring officer will consult the independent person and together they will assess whether it is likely there has been a breach, and whether it is serious enough to warrant a sanction. Based on this assessment the monitoring officer will decide whether to resolve the matter informally or refer it for an independent investigation.
47. In these complaints, the monitoring officer consulted the independent person as required. In the complaints about the Member being rude, the monitoring officer dealt with this informally. They wrote to the Member and Mrs B and directed the Member to apologise to Mrs B. In the complaints about the possible conflicts of interest, the monitoring officer decided that there was likely no breach of the Code.
48. In both instances, the Council’s monitoring officer properly considered the complaints and followed the Council’s procedure. There was no fault in how the Council dealt with these complaints.

The Council only carried out the required archaeological, and wildlife and botanical surveys after it had made its decision, and still has not carried out the ecological survey.

49. The cycle track did not need planning permission. There was no requirement for the Council to have carried out the surveys prior to the decision. If these surveys revealed anything adverse, the Council could have brought the decision back to the Committee.
50. The Council has since completed these surveys (including the ecological survey) and consulted the Environment Agency and the Drainage Board to take account of flood risk. None of these surveys raised any concerns that might mean the cycle track should not go ahead.

The Council failed to answer questions she raised at the meeting, and failed to deal with her complaint properly

51. Mrs B made her second complaint to the Council in March 2024. This was about the decision and about Members’ conduct. Mrs B did not receive a response and had already complained to the Ombudsman before our intervention made sure the Council investigated her complaints. The Council took four months to respond and this was too long. In the meantime, the track was being constructed and residents had started to report problems.
52. Although the complaint did not alter the decision to install the track, the delay caused Mrs B frustration and put her to time and trouble. However, the Council has already apologised to Mrs B for this and so there is no basis for me to recommend it takes further action.

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Decision

53. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman