Summary: We will not investigate Mr X’s complaint about the Council’s refusal to improve a cycle path. This is because there is no requirement for the Council to widen or otherwise improve the path and if Mr X believes the Council has failed to properly maintain it, it would be reasonable for him to apply to the court for an Order requiring it to carry out repairs.

The complaint

1. The complainant, Mr X, complains the Council has failed to carry out improvements to a designated cycle path. He says the path is too narrow and dangerous for cyclists and he feels discriminated against.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Highways Act 1980 allows local authorities to improve publicly maintainable highways but places no duty on them to do so. Mr X points to current standards for cycle paths as evidence the cycle path he complains about is too narrow, but these standards do not apply retrospectively. The Council is therefore not required to widen existing cycle paths so they meet current standards.
7. If however Mr X believes the cycle path, as part of the public highway, is out of repair he may apply to the court for an Order requiring it to act. This is because Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways and Section 56 of the Act provides a mechanism for members of the public to enforce this via the courts.
8. The courts are better placed to decide if the Council has fulfilled its statutory obligations and if it has not, an Order to carry out repairs is legally binding. So if Mr X considers vegetation overgrowing the cycle path and causing it to narrow and become unsafe amounts to a failure to properly maintain part of the highway it would be reasonable for him to use the process set out above and take the matter to court.

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Final decision

9. We will not investigate this complaint. This is because there is no requirement for the Council to widen the cycle path and if Mr X believes it is out of repair it would be reasonable for him to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman