Decision : Not upheld
Decision date : 13 Mar 2020
The Ombudsman's final decision:
Summary: Mr X complained that the Council failed to remove logs and branches from the embankment of a shared use path. The Council was not at fault in its decision not to clear the cuttings.
- Mr X complained about how the Council maintained a shared use path. He said it failed to clear the sides of the path from debris after it had cut back trees. He said the resulting brash (piles of wood and branches) were a potential fire hazard. He said they also attracted vermin and posed a risk to domestic dogs.
What I have investigated
- Mr X has made previous complaints to the Council about the condition of the footpath. This decision only considers his complaint about brash and not the historical matters. The reasons for this are explained at the end of my decision.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
How I considered this complaint
- I considered the current and previous complaints Mr X made to the Council and its responses to them.
- I made enquiries of the Council.
- Mr X and the Council both had the opportunity to comment on my draft decision. I considered their comments before I make my final decision.
What I found
- The Council contracts out the maintenance of its highways, public rights of way, parks and open spaces, to the Contractor. The Contractor also provides responses to complaints about these services for the Council.
- Mr X lives next to a disused railway. The Council bought the railway and turned into a green space for public use. There is a shared use path on the old railway. That is not a designated public right of way but is a ‘Public Open Space’.
- The Council states that as a ‘Public Open Space’ the Contractor completes ad-hoc inspections of the path. The Contractor responds to any defects in line with the Council’s ‘Highways Maintenance Plan’ which uses a risk based approach to prioritising its works.
- Over the past two years, Mr X has made several complaints to the Council about the disused railway and surrounding area. These have included complaints about the condition of trees, the proximity of trees to his house and about brash on the path’s embankment.
- In July 2018 the Contractor met with Mr X and completed a site visit. The Contractor confirmed it told Mr X “that either side of the footway could do with clearing back at some point as brambles and some self seeded trees were starting to encroach over the footway but at the time this was not priority work”.
- Mr X made a further complaint to the Council about the brash on the verges in March 2019. The Contractor provided a response alongside the Council. That said it tried to remove as much brash as possible, but it was not always possible to get machinery to the trees being worked on. It said it was more cost effective to leave brash on the embankment to serve as a wildlife habitat.
- Mr X responded and referred to his site visit in July 2018. He said the Contractor had examined a pile of brash and agreed it posed a hazard to people using the path. He said the brash would encourage the spread of tree rot and its presence encouraged members of the public to throw litter into it causing a fire and health hazard.
- The Contractor sent Mr X its final response. It said that it assessed the condition of the footpath in line with the Highway Management Plan. It said its priority was to make the area safe and that it did not consider the brash piles to be a hazard.
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees. We must consider whether there was fault in the way the decision was reached.
- The Council uses a risk based approach to prioritise its public space maintenance work. The Council does not assess the brash as posing a risk. In addition, the Council has provided a reason for not removing the brash. There was no fault in how the Council made its decision about the brash. However, even if I were to find fault, the Council’s decision not to clear the brash has not caused Mr X a significant injustice. The Ombudsman cannot speculate on what injustice the brash may cause in future.
- The Council was not at fault in how it maintained a shared use path therefore I have completed my investigation.
Parts of the complaint I did not investigate
- Mr X has raised complaints about the footpath since 2018. I have not considered any historical matters as part of this investigation. That is because these complaints are late.
Investigator's decision on behalf of the Ombudsman