Summary: Mrs X complained the Council cut down trees and a hedgerow over a 1-kilometre stretch in a conservation area. Mrs X says the Council’s actions have impacted her privacy, removed a sound and pollutant barrier and have caused her anxiety, emotional damage and stress. The Ombudsman found fault with the Council’s failure to consult with the district council and tell Mrs X of the clearance works. The Ombudsman considered the Council’s offer of £500 to Mrs X suitable. The Ombudsman did not find fault with the Council’s decision to complete the clearance works.

The complaint

1. Mrs X complained the Council cut down trees and a hedgerow over a 1-kilometre stretch in a conservation area. Mrs X says the Council did not consider its own policies or the impact in carrying out this action.
2. Mrs X says the Council’s actions have impacted her privacy, removed a sound and pollutant barrier and have caused her anxiety, emotional damage and stress.

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The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. I have considered all the information Mrs X. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mrs X and the Council had opportunity to comment on my draft decision.

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What I found

The law

8. Public rights of way are highways that allow the public a legal right of passage. They have the same status and protection in law as highways.
9. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the condition of highways for which they are responsible and to carry out repairs where necessary.
10. The Council has a duty to put a highway into such good repair that makes it passable for the ordinary traffic expected on that form of highway. This traffic should be able to travel without danger caused by the condition of the highway.
11. A highway can be any legal width provided it is recorded in the Definitive Statement. Where there is no recorded width in the Definitive Statement the common law hedge to hedge presumption applies. This means the width of a highway is the distance from the centre of each hedgerow that borders it.

Council policies

12. The Council’s Rights of Way Service Statement, Policy 4 outlines the minimum width of new routes. The Council recommends that any bridleways have a minimum width of 4 metres.
13. The Council also provides a diagram for contractors of its annual vegetation clearance plan (which covers 19% of its network). This diagram says that for bridleways the contractors should clear a minimum width of 3 metres fully with cleared headroom of 3.5metres.
14. Any minor growth still on the highway but outside the 3-metre width should be cut back to a cleared surface, or about 45 degrees, to prevent anything falling back on the cleared route. Any surface cut back should not exceed 7.5cm in height.
15. The diagram shows that this 3-metre width is a minimum and may be less than the legal highway width.
16. The Council will maintain all other routes outside its annual vegetation clearance plan roughly every ten years. The Council will also consider maintenance on a route if it notices, or a member of the public complains about, excessive growth. This excessive growth would be constraining the usable width beyond what is acceptable for that type of highway.

What happened

17. In June 2020, a member of the public contacted the Council to advise about problems with riding a horse down the bridleway next to Mrs X’s property. A council officer met with the member of the public on 18 June 2020 to view the problems with the bridleway.
18. On 19 June 2020, the Council officer wrote to the member of the public to confirm the Council would look at completing a clearance of the bridleway in the autumn of 2020.
19. A member of the public contacted the Council on 13 January 2021 to advise the Council had not cleared the bridleway. The Council apologised for the delay and advised it would look to start the works shortly.
20. In February 2021, the Council began clearance of bridleways near Mrs X’s property and by 15 March 2021 had started clearing the bridleway next to Mrs X’s property. The Council completed clearance of the bridleway near Mrs X’s property on 16 March 2021.
21. Mrs X complained to the Council on 16 March 2021 about clearance of the hedgerow and trees on the bridleway. Mrs X also emailed her councillor. Mrs X said:
• The Council had cleared the hedgerow in a conservation area but the Council failed to make an application to remove the hedgerow or provide notice.
• Clearance of the hedgerow removed nesting areas for birds and other wildlife.
• The hedgerow acted as a sound barrier for her property from the M25 motorway.
• The clearance works had widened the bridleway to 22ft (7 metres) which meant that cars could now drive down it.
• The clearance increased the potential of burglary and fly tipping.
• The clearance has caused her to lose privacy in her back-garden.
• The Council worker who completed clearance of the bridleway spoke to her aggressively.
22. Mrs X’s councillor contacted the Council in response to Mrs X’s complaint and added to Mrs X’s concerns. The councillor advised the Council had cleared the hedgerow in nesting season, against its policy, and questioned how clearance of the hedgerow would assist the “climate emergency”.
23. The Council responded to Mrs X’s complaint on 19 March 2021. The Council:
• Apologised for completing the works in March 2021, during the nesting season, and advised it should have completed these works in the winter. The Council said bad weather prevented it from completing the works in January 2021 but it should have waited until winter 2021. The Council advised it had adapted the timetable for 2021 to try to prevent recurrences of clearances during nesting periods.
• Said it completed the clearance works to ensure the Council’s right of way network was usable and unobstructed. The Council said it can complete clearance works on its right of way network without consent but should have told Mrs X of the works.
• Said it had spoken with the contractor who completed the works and reminded him about being polite and courteous while he is working for the Council. The Council said it would be following this up with the contractor.
24. Mrs X responded to the Council on 21 March 2021. Mrs X said the Council had not cleared the hedgerow for ten years so it would take ten years for it to regrow. Mrs X said the clearance has resulted in reduced privacy in her garden and motorbikes had now starting using the bridleway. Mrs X asked the Council to replant the hedgerow and install a two-metre high fence to her garden to reinstate her privacy. Mrs X also asked for details of who asked the Council to complete the clearance and a letter of apology from the contractor.
25. The Council consulted with the District Council who advised the Council should have submitted a Conservation Area Notification because of the locality of the bridleway. The District Council advised it would likely have approved the works had the Council submitted this notification.
26. The Council provided its Stage 1 complaint response to Mrs X on 25 March 2021. The Council said:
• It apologised for completing the works in March 2021, rather than winter, and for the failure to tell Mrs X of the works.
• It had a duty to keep bridleway’s open and usable across their full width. The Council said it will try to keep bridleways to a minimum width of four metres. The Council said it completes clearances on a cyclic maintenance programme which aims to keep bridleways clear but reduce the number of clearances needed.
• It would not consider planting on the bridleway as this would be on obstruction of the bridleway. Other residents could then complain about the obstruction.
• While it timed the clearance poorly the wildlife could move to nearby rural areas close to the bridleway.
• Mrs X’s privacy was an issue for her to address. However, since the Council did not provide Mrs X with warning it could offer a financial contribution towards planting of a hedgerow inside Mrs X’s boundary.
• If Mrs X was happy to share her email address with the contractor, the Council would arrange for an apology.
• It could not share the personal details of the person who reported concerns about the bridleway.
27. Mrs X responded to the Council on 29 March 2021. Mrs X asked the Council to consider her complaint at Stage 2 of its complaint process. Mrs X said the works went beyond reasonable maintenance and there was already an adequate pathway for walkers and horses. Mrs X reiterated her concerns about her privacy, risk of burglaries and motorbikes using the bridleway. Mrs X said she would be looking for more than a “contribution” from the Council for planting the hedgerow. Mrs X asked the Council to replant the hedgerow on the bridleway reducing the bridleway back to a 2-metre width. Mrs X also asked the Council to install a privacy screen for her property. Mrs X asked the Council to pass on the apology from the contractor.
28. The Council accepted the Stage 2 complaint request on 30 March 2021 and promised a response by 6 May 2021. The Council also arranged to meet with Mrs X on 5 April 2021 to discuss the complaint further. The Council completed this visit.
29. On 8 April 2021, the Council passed over the written apology from the contractor to Mrs X.
30. The Council wrote to Mrs X on 5 May 2021 to apologise for the delay in handling of her Stage 2 complaint and advised it would provide its response by 13 May 2021. On 13 May 2021, the Council provided its Stage 2 complaint response. The Council said:
• It carried out the clearance at the wrong time of year as this was a nesting season.
• It is not usual to consult with residents over routine works on a public right of way as it is a statutory duty to maintain the public highway. However, since some vegetation cut was rooted in Mrs X’s property it should have provided Mrs X with 14 days’ notice to cut back the vegetation herself at her cost. The Council told the contractor to cut back vegetation on the bridleway but not on private property.
• Despite the fault with cutting the vegetation rooted in Mrs X’s property it did not consider it appropriate to plant new vegetation. The Council would instead offer Mrs X £500 for the distress and inconvenience caused which Mrs X could use towards a fence if she wished.
• It had confirmed from the site visit that a person could now see Mrs X’s garden from the bridleway. While Mrs X may previously have benefited from privacy and security from the hedgerow this was not a reason for planting the hedgerow. The Council has no duty to retain vegetation for privacy, security or noise reduction to an individuals property.
• The Definitive Statement did not confirm the legal width of this bridleway. But. the Side Roads Order for the M25 at this location showed the bridleway width should be 7 metres and this is now the cleared width according to Mrs X. The Council had now begun the process of recording the legal width of this bridleway as 7 metres. Since no previous legal width is recorded the legal width is normally considered the distance between any surrounding boundaries. In this instance, fences run along both sides of the bridleway creating a 7 metre width.
• Mrs X should report people driving down the bridleway to the police.
• The contractor has already provided a written apology to Mrs X and this is an acceptable outcome for this part of the complaint.
31. Mrs X disputed the Stage 2 complaint response on 24 May 2021. Mrs X said:
• The Council carried out works in a conservation area and failed to provide any notice.
• The Council caused Mrs X to lose amenity through privacy, security and noise reduction.
• The Council had breached its own sustainability vision and strategy.
• Motorbikes and cars had now started using the bridleway.
• The M25 Environmental Impact assessment for widening the M25 motorway required planting of hedgerows which the Council had now removed.
32. On 1 June 2021, the Council told Mrs X she had gone through its complaints process and upheld its offer of £500. The Council advised Mrs X could approach the Local Government and Social Care Ombudsman (the Ombudsman) with her complaint.

Analysis

33. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define law.
34. The Ombudsman must decide if the Council has considered the relevant legislation and policies when completing the clearance of the bridleway. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
35. If the Council has failed to follow legislation of policies, the Ombudsman may find fault. However, even if the Ombudsman does find fault, it must consider whether the Council’s fault has caused Mrs X a significant personal injustice.
36. The Ombudsman also cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is: ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])

Council’s responsibility to maintain bridleways

37. The Council has a general responsibility to maintain public rights of way. The bridleway which runs next to Mrs X’s property is a public right of way and falls within the Council’s network. This means the Council has a responsibility for the maintenance and upkeep of this bridleway.
38. The Council has explained that it only completes yearly maintenance of about 19% of its public right of way network. The bridleway running next to Mrs X’s property does not form part of the Council’s yearly maintenance, annual vegetation clearance, plan.
39. While the Council does not regularly maintain this right of way, it still has a responsibility to maintain the bridleway so it is fit for purpose. A member of the public contacted the Council to complain about obstruction on the bridleway for horse-riders. The Council had a duty to consider the person’s contact and ensure the bridleway was fit for purpose.
40. The Council took appropriate action to meet with the member of the public and inspect the bridleway. On inspection, the Council decided it needed to complete clearance work on the bridleway because of the obstruction the overgrown vegetation presented to horse-riders. This meant the bridleway was not fit for purpose in its preclearance state.
41. There is no evidence of fault in how the Council decided it needed to complete clearance works on the bridleway.

Council acting against policies

42. Mrs X has pointed to the Council not acting in line with its own policies or legislation when completing the clearance. Mrs X has pointed to the Council’s climate policy and the M25 highways mitigation strategy.
43. Mrs X said the Council has failed to follow its climate policies by completing the bridleway clearance. The Council’s commitment to its environmental policies may conflict with its duty to complete highways maintenance. However, this does not mean the Council can ignore its duty to ensure rights of way are fit for purpose. The Council’s environmental goals and policies are long-term and across the entire council area, not specific to this one bridleway. I cannot decide the Council has failed to follow its environmental policies by completing the clearance works Mrs X complained about.
44. Mrs X has also advised as part of the works on the M25 in the 1980s, the proposal included planting of linear hedges and woodland alongside the M25 to provide visual amenity and screening. Mrs X says the Council has removed this hedge and woodland by completing the clearance.
45. The highway mitigation strategy does not specifically refer to the bridleway bordering Mrs X’s property but refers to a “linear hedge and woodland” along the stretch of the M25 near Mrs X’s property. There still exists woodland and hedges between Mrs X’s property and the M25 motorway running linear to the M25. While the Council has cut back the bridleway to make it fit for purposes, it has not removed this mitigation strategy.
46. I do not consider the Council has acted against its policies when deciding to complete the bridleway clearance and do not find fault.

Failure to consult

47. The bridleway running next to Mrs X’s property borders a conservation area. The Council should have consulted with the District Council and submitted a Conservation Area Notification. The Council failed to complete this action, this is fault.
48. While this is fault, the District Council has advised it would likely have approved the clearance works had the Council consulted with it. Since the District Council would likely have approved the clearance works, the fault by the Council has caused no injustice as the works would likely have gone ahead.
49. The Council has already taken action about this fault. It has put in place service improvements to ensure that it consults correctly with the District Council in future instances of clearance works near, or in, conservation areas. The Ombudsman does not consider the Council need take further action to address this fault.

Failure to tell Mrs X

50. The Council failed to tell Mrs X of the intended clearance of the bridleway running next to her property.
51. The Council has already admitted its in Stage 2 complaint response that it failed to provide advanced notification of the works to Mrs X. The Council should have provided this notification because of the vegetation from her property encroaching onto the bridleway. The Council has admitted fault. This fault caused Mrs X a personal injustice through the lack of advanced warning and resultant distress.
52. The Council has offered Mrs X £500 for the distress and inconvenience caused through its fault. The Council has agreed to maintain this offer.
53. The Ombudsman would normally ask a Council to provide an award of £100 to £300 for distress and inconvenience in circumstances like this complaint. The Ombudsman does not consider the Council should provide an award more than this offer in the circumstances of Mrs X’s complaint and recommends the Council maintains it offer of £500.

Extent of the clearance

54. Mrs X disputed both the Council’s decision to clear the vegetation on the bridleway and the extent to which the Council cleared the vegetation.
55. While the Council has a duty to maintain a public right of way, it should be completing any maintenance work in a proportionate manner.
56. The Council has admitted it has no record of the legal width for the bridleway next to Mrs X’s property. This means the Council needed to consider a suitable width to clear the bridleway to when completing maintenance works.
57. While there is no legally defined width of the bridleway running next to Mrs X’s property, there are fences running alongside both sides of the bridleway. In the absence of a legal width the Council is entitled to use the borders of the bridleway to define the width of the public right of way.
58. The Council cleared the bridleway to the full width, 7 metres, between the two fences. The Council was entitled to clear the bridleway to this distance.
59. While the Council was entitled to clear the bridleway to the full 7-metre width, it needed to have consideration of its policies. The Council’s policies on bridleways are clear that the minimum clearance should be at least 3-metres fully cleared. The remaining width of the bridleway should be cut back to a height of no more than 7.5cm, but could still be cleared fully.
60. Additionally, the Council’s policy on new bridleway’s says a bridleway should be at least 4 metres wide.
61. Nothing in the Council’s policies prevented the Council from clearing the full width of the bridleway. Rather the policies outline a minimum, but not a maximum, clearance width. The Ombudsman would expect the Council to follow its policy and clear the bridleway to a minimum of 3 metres fully with anything else on the bridleway outside this 3 metres at least cut back.
62. The Council has pointed to the Side Roads Order as confirming the width of the bridleway should be 7 metres.
63. The Side Roads Order does not confirm the exact width of the bridleway next to Mrs X’s property. The Side Roads Order instead contains a “to scale” map of the bridleway next to Mrs X’s property. Given the scale of this map, and comparative size of the bridleway, the Ombudsman cannot be confident this confirms a 7-metre width. However, the map does show a bridleway of likely at least 5-metres when comparing this to the width of the M25.
64. The Council’s decision the Side Roads Order shows the bridleway to be 7 metres is not a decision I could say is so unreasonable that no other sensible person could reach this decision.
65. The Council has followed its policies, considered the Side Roads Order and considered the bridleway is bordered by fences on either side when deciding to clear the full width. There is no fault in how the Council reached its decision.

Impact on Mrs X’s amenity

66. Mrs X complained the Council’s clearance of the hedgerow has impacted on her privacy and removed a natural sound barrier.
67. Mrs X’s complaint is about the Council clearing a hedgerow on the bridleway, which is council land. As detailed in paragraphs 37 to 41 and 54 to 65, the Ombudsman does not find fault with the Council for completing clearance of the hedgerow.
68. Since the hedgerow lay on council land, Mrs X could not rely on this as a permanent fixture for her privacy or as a sound barrier. The Council did not need to consider the impact on Mrs X’s amenity as part of its decision to complete the clearance so I cannot find fault.
69. Mrs X would need to rely on vegetation growing within her own boundary (which does not spill over on to Council land) or her own fencing for privacy and as a sound barrier. The Council has noted Mrs X could use the £500 it offered towards such a boundary treatment.

Attitude of the contractor and the Council complaints department

70. Mrs X complained the Council contractor was rude and aggressive towards her.
71. The Council accepted Mrs X’s concerns about the contractor in response to her first contact. Following the Stage 1 complaint response it arranged for the contractor to write an apology to Mrs X which it passed on to her. The Council also reminded the contractor about their responsibility towards the public when acting on behalf of the Council.
72. The Council has taken suitable steps to address Mrs X’s concerns about the contractor. There is nothing further the Ombudsman considers the Council should do to address this part of Mrs X’s complaint.
73. Mrs X also complained about the attitude of the Council’s response to her complaint.
74. The Council has provided all contacts between itself and Mrs X to the Ombudsman. I consider the Council has corresponded with Mrs X in an appropriate and professional manner throughout. The Council has also met with Mrs X to discuss her concerns and provided detailed and robust responses as part of its complaint process.
75. While I acknowledge Mrs X may feel the Council has addressed her in a condescending manner, I do not share this view. I do not find fault with how the Council handled Mrs X’s contacts and complaint.

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Agreed action

76. Within one month of the Ombudsman’s final decision the Council should:
• Pay Mrs X £500 for the distress and inconvenience caused through its failure to notify Mrs X of its decision to clear the bridleway.

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Final decision

77. There was fault leading to injustice. I considered the Council’s offer of £500 suitable in the circumstances of this complaint and have completed my investigation accordingly.

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Investigator's decision on behalf of the Ombudsman