Babergh District Council (17 007 022)

Category : Transport and highways > Rights of way

Decision : Not upheld

Decision date : 17 Jan 2018

The Ombudsman's final decision:

Summary: The Council has not always communicated effectively with the complainant in response to her enquiries or complaint. But it is not at fault for how it has considered the substantive complaint about the upkeep of footpaths in a countryside area it manages.

The complaint

  1. The complainant, who I will call ‘Ms F’, is unhappy with how the Council has maintained two footpaths that serve a countryside area it manages. She has complained that one path leading up some steps is unsafe. While Ms F complains another is sometimes impassable because of mud. Ms F says the cause of this (or what makes its condition worse) is that a neighbouring landowner exercises horses along a section of the path to access the countryside area. Ms F considers the Council should be preventing this use by horses.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. Before completing this investigation and issuing this decision statement I considered:
  • Ms F’s complaint to the Ombudsman and supporting information, including that gathered in a telephone conversation with her.
  • Correspondence about the issues covered by the complaint exchanged between Ms F and the Council before we began our investigation.
  • Further information provided by the Council in reply to written enquiries.
  • Relevant law and guidance as referred to in the text below.
  • Ms F’s comments on a draft decision statement setting out my thinking about the complaint. Where appropriate I amended the wording of the statement after considering those comments (the Council also had chance to comment on a draft but did not do so).

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What I found

  1. Close to Ms F’s home is a countryside area owned and managed by the Council which she enjoys walking in. The countryside area has a path running through it that follows an old railway line. I will call that ‘Path A’. Path A travels in approximately a north to south direction.
  2. Running parallel to Path A and to its west at its start (i.e. the most northerly point) is a second path I will call ‘Path B’. Unlike Path A, Path B is a designated public right of way. This means the County Council has some responsibility for ensuring Path B remains usable. Although the County Council will only intervene if a landowner is not keeping a right of way usable and maintained. In this case the landowner is the District Council.
  3. The County Council keeps a definitive map and description showing the routes of rights of way. In this case the record shows that after running parallel to the west of Path A for a time, Path B then crosses over it and runs to the east before crossing a picnic area. Before it reaches the ‘cross-over point’ there is also a short connecting route between Paths A and B where a flight of steps leads from one to the other. I will call this ‘Path C’.
  4. In practice, the stretch of Path B where it crosses Path A has fallen into disuse and become overgrown. To anyone walking along it Path B appears to continue to run parallel to Path A beyond the ‘crossing point’ until it reaches a tunnel that passes underneath Path A. On the western side of the tunnel that stretch of path then turns to meet Path A. I will call the stretch of path between where it leaves the designated right of way route to where it connects with Path A, ‘Path D’.
  5. A landowner also has direct access to Path D. They use this path to exercise horses which also use Path A for exercise.

The complaint about ‘Path C’

  1. I considered each part of Ms F’s complaint in turn beginning with that about the Path C. In March 2016, Ms F complained to the Council about the condition of the handrails and a loose guard-rail at the top of Path C. Ms F has also copied me emails she sent to the Council in 2015, showing she first raised those issues then.
  2. In reply, in March 2016, the Council inspected the condition of the path. It repaired the guard rail at the top of the steps. It said it would be “adding some handrail to the bottom”. But this did not happen.
  3. In response to my enquiries about this matter the Council has said that it believes Path C to be in safe condition. It provides a photograph showing the renewed barrier guard at the top of the flight of steps. It has not commented further on why it did not add handrail to the bottom of the steps as it suggested in March 2016.

The complaint about ‘Path D’

  1. Since March 2016 Ms F has also complained about the condition of this path. Ms F prefers to access the countryside area using this path as she struggles with the steps on Path C which is the nearest entry point to her home. Ms F also says that in the past parents with buggies or wheelchair users would use Path D. But Ms F says that in recent years horses began using the path. They have churned up the ground and made it impassable at times due to mud.
  2. In its first response to Ms F in March 2016 the Council understood her complaint concerned Path B. So, it did not distinguish that stretch of the path which does not follow the right of way route. It said this was “owned and managed” by the County Council and referred her to it. But in reply to my enquiries the Council has clarified Path D does not form part of the public right of way because it leaves the line of Path B as described. It has also confirmed that both these paths cross its land.
  3. The Council accepts that at times, especially in the winter months, Path D may become more boggy and harder to use. But it does not consider this unusual in a countryside setting. So it does not consider it has become unusable at any point. It also accepts some users may face more difficulty using the path. But it questions if even in dry weather it is a suitable route for buggies or wheelchairs given how it slopes uphill to join Path A. The Council also points out that anyone wanting to use the countryside area and walk along Path A has the choice of joining it at its start (a level access) or via Path C. Horses do not use either of these entrances. The Council says it does not discourage horses from using the path as it considers horse-riding a suitable leisure activity for the countryside area on a par with walking or cycling which it encourages.
  4. In support of its position the Council has sent me photographs taken in November 2015 and February 2017 showing the condition of Path D at various points along its length. It has also sent me emails it has exchanged with the County Council. These appear to recognise that Path D has now superseded that stretch of Path B fallen into dis-use and so effectively serves as the public right of way. The County Council stated in those emails it has “no issues” with the District Council allowing horses to use the path. It also agreed with proposals by the Council to put down some woodchips to improve its surface.
  5. In laying the wood-chip the Council liaised with the landowner who uses Path D to exercise their horses. It alerted them to a complaint about the condition of Path D but has not asked them to stop using it. The landowner points out there are springs near Path D where it passes under Path A which make it wetter at certain times of year.

Other matters

  1. During her correspondence with the Council Ms F has also pointed out to the Council the neighbouring landowner has cut down trees and left tree stumps she considers a hazard. The Council has not responded directly to this but pointed out the boundary between land it owns and that owned by the landowner.
  2. In May 2017, the Council officers responsible for managing the countryside site twice told Ms F they would not enter further correspondence about Path D. Only when Ms F told the Council she did not accept its reply did it direct her to Stage 2 of its corporate complaints procedure. Ms F later used that procedure and I have taken account of the Council’s reply when summarising its position above.

My findings

  1. I did not consider I could uphold Ms F’s complaint about ‘Path C’. I recognise the Council did not respond in 2015 when she first raised concerns about this, which was poor service. But when Ms F made a complaint in March 2016 the Council corrected that and carried out works to make the guard-rail at the top of the steps safe. I accept its reply implied other works might follow. However, I cannot see grounds to recommend the Council undertake further works now.
  2. First, this is because I cannot see there is fault in the Council’s management of that path as it remains usable to the public. Extra handrails may be a desirable safety feature but I cannot find the Council obliged to fit them. Second, I also note the focus of Ms F’s complaint since March 2016 has been with Path D and not Path C. This suggests that she too would regard any further work on the steps forming Path C as being of low priority. So, while some of its communications about this matter might have been better it was not enough for me to find fault.
  3. Turning to the complaints about ‘Path D’ I noted that in its reply to Ms F’s complaint the Council recognised some of its earlier responses were confusing. I agree. I consider the confusion probably arose because the path appeared a natural continuation of Path B. Over time, users of that path have preferred to join Path A by passing under the tunnel rather than crossing where the map suggests. But I did not think it mattered whether the path is public right of way or not. It sits within the countryside area and so it is the Council’s responsibility to ensure it remains usable. This is whether as a right of way or simply as one of the paths that serve the countryside area.
  4. I do not consider keeping a path ‘usable’ means it must be capable of use by all potential users in all weathers. I consider it reasonable for the Council to point out that weather and ground conditions can cause paths to become muddy and so harder to use. So, can gradients and other natural occurring hazards. I agree with the Council that this is what might be expected in a countryside setting.
  5. I accept Ms F’s point that ground conditions might worsen through use by horses. But I consider it reasonable for the Council to let horses use the countryside area for the reasons it gives. I think it reasonable for the Council to find the path has not become unusable because of horses, given what I have explained above how I interpret this term. I also put weight on the communications the Council has had with the County Council which clearly saw no reason to challenge its approach in letting horses use Path D. It was also reasonable for the Council to point out there are other access points to the countryside area that will provide easier access for pedestrians, not used by horses.
  6. I could therefore see no grounds to find fault with how the Council responded to the substantive issue raised by Ms F’s complaint. I accept Ms F may disagree with its judgment over the condition of Path D but that does not equate to a fault. I found the Council had only taken relevant factors into account and not irrelevant ones in responding to her concerns.
  7. I found the Council had not replied directly to the point made by Ms F about the tree stumps. It implied the trees did not lie in its ownership, although Ms F is adamant that is not the case. I accepted a tree stump can cause a potential trip hazard but I considered again there is nothing unusual in this in a countryside setting. Ms F had done what she could in making the Council aware of her concern. But I could see no grounds to think the Council at fault for not taking action in response and so I could not recommend any action the Council should take in respect of this matter.
  8. Finally, I considered the Council was wrong to try and cut off communications with Ms F in May 2017 when she was clearly unhappy with its replies about Path D. The Council should have signposted Ms F to its complaint procedure instead. Its replies were so poor they may have justified a finding of fault. But I did not find any injustice arose from the emails sent to Ms F where it said it would not correspond further with her. This was because of Ms F’s persistence which ensured, after a short delay, the Council replied to her complaint through its complaint procedure. But the Council should note its earlier emails were unhelpful and inappropriate.

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Final decision

  1. For the reasons explained above I do not uphold this complaint. I find there is insufficient evidence to justify a finding of fault by the Council causing injustice to the complainant. I have therefore completed my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman

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