Lincolnshire County Council (18 005 188)

Category : Transport and highways > Rights of way

Decision : Upheld

Decision date : 09 Nov 2018

The Ombudsman's final decision:

Summary: Mr Q complains about the Council not providing an alternative safe path for pedestrians after it closed a footway. Mr Q says this puts pedestrians in danger. There was fault with the Council’s actions. However, there was no significant injustice because the outcome would have been the same had the faults not occurred.

The complaint

  1. Mr Q complains about a footway being closed with no alternative safe path provided for pedestrians. Mr Q says this puts pedestrians in danger as they have no option but to use the road. Mr Q also complains the Council has not made provisions for the repair of the footway.

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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)

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How I considered this complaint

  1. I have spoken to Mr Q and considered the information he provided. I have also considered relevant legislation and policies.
  2. I sent a draft decision to Mr Q and the Council and considered their comments.

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What I found

  1. The Highways Act 1980 deals with the management and operation of the road network in England and Wales. It sets out the duty on the relevant highways authority to maintain highways which are maintainable at the public expense.
  2. A definition of a footway is also provided in the legislation. It sets out that footway “means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only”. A footway is therefore a pavement that is next to a road and is treated as part of the main highway. This means if the footway is next to a highway which is maintainable at the public expense, then the highways authority has a duty to maintain the footway.

Traffic Regulation Act 1984

  1. The Traffic Regulation Act 1984 give councils the power to regulate or restrict traffic on the highway.
  2. Section 14 of the Act sets out the power for the highway authority to, by order or notice, restrict or prohibit temporarily the use of a road. The highways authority must be satisfied that traffic on the road should be restricted or prohibited because of certain factors, including if there is a likelihood of danger to the public.
  3. Section 15 of the Act sets out that an order obtained under section 14 should not continue in force for more than 18 months from the date issued. It also sets out that a notice under section 14 should not continue in force, if it was issued because of likelihood of danger to the public, for more than twenty-one days from the date issued.

Highways asset management plan

  1. The Council has a highways asset management plan which is intended to define the Council’s policies and methods for the maintenance of the road network.
  2. It states that all highways assessments, inspections and surveys should be established with a clear understanding of the risks and consequences involved. Risk management should address the following issues which could affect the users of the network:
  • Safety of the network and liability for accident
  • Asset loss or damage
  • Service failure or reduction
  • Operational
  • Environmental
  • Financial
  • Contractual
  • Reputation
  • Risk register
  1. The policy also highlights that all records and information maintained by the Council will be accurate and effectively managed.

Chronology

  1. In 2014 the Council, as the relevant highways authority, closed a section of a footway. The Council said the section was closed because of issues with subsidence and the risk to pedestrian safety.
  2. The Council explained it closed the footway following a risk assessment on site. The Council said the risk assessment was not formally recorded in a written format.
  3. The Council also said pedestrian usage of the footway was low and this was based on an evaluation that it carried out. The Council said the evaluation was carried out using local knowledge and experience from site visits. However, this evaluation was also not formally recorded in a written format.
  4. The Council obtained quotes for the repair of the footway but it was unable to secure the funding needed to proceed. The Council confirmed there were currently no plans to repair the footway but the Council would monitor the situation, in terms of the condition of the footway and any future funding.
  5. In March 2018, Mr Q complained to the Council about the footway closure. Mr Q said the closure of the footway was a danger to pedestrians because the Council had not provided an alternative path for pedestrians to use. Mr Q said the lack of an alternative path meant pedestrians had to use the road to continue past the closed footway or continue to walk on the footway which had been closed for safety issues. Mr Q also questioned whether the Council needed to obtain a “closure order” to close the footway.
  6. The Council initially said a “closure order” was not required to close the footway as “temporary road closures order” are only required when the whole carriageway was proposed to be closed. The Council then explained the footway had been closed under the Traffic Regulation Act 1984 but a temporary regulation order was discretionary and not compulsory. It is not clear from the evidence if the Council had obtained a temporary regulation order to close the footway temporarily.
  7. The Council explained it had not been able to provide an alternative for pedestrians as the cost, compared to the number of pedestrians who would use the footway, could not be justified. It said any temporary provision would likely require traffic signals, a barriered walkway, and a reduction in the speed limit. These arrangements would be expensive and require the Council to regularly attend the site to ensure the temporary measures remained in place.
  8. The Council highlighted other options it had considered including providing a new footway on the opposite side of the carriageway and temporary traffic lights. Council said it did not consider it practical to provide a new footway on the opposite side of the road because of the need for pedestrians to cross the road twice in a short section of the highway. It also said temporary traffic lights would cause issues to other highway users that the Council would not consider acceptable.
  9. The Council has put up signs in the road which warns motorists of potential pedestrians in the road. It says this was a risk management measure.

Analysis

  1. The Council has explained what actions it took before closing the footway. It explained it carried out a risk assessment and an evaluation of pedestrian use. However, the Council did not formally record its actions and the results. The Council’s policy outlines all records and information maintained by the Council should be accurate and effectively managed. Therefore, the lack of formal recording of information appears to be fault as there is no evidence the Council has effectively managed its information and records in relation to the decision to close the footway.
  2. It is also unclear what power the Council used to close the footway. The Council said the footway was closed under the Traffic Regulation Act 1984. It then suggested a temporary regulation order was discretionary and not compulsory. It is therefore not clear if the Council had obtained a temporary regulation order. However, I note the legislation does appear to give the Council the power to make an immediate road closure, by notice, if there is a likelihood of danger to the public.
  3. In any case, the Traffic Regulation Act 1984 sets out the time limits to temporary regulation orders or notice. It states the maximum length of a temporary regulation order is 18 months, although I acknowledge there are provisions in place to extend this. It also states the maximum length of time for a closure issued by notice is 21 days. The footway has been closed for approximately four years and the Council has not provided any evidence it had sought to extend the footway closure period. The evidence therefore suggests the Council may not have followed the correct process when it closed the footway. This was fault.
  4. I must also consider if the fault identified caused Mr Q an injustice. The Council said it carried out a risk assessment at the time before closing the footway. From the evidence provided by the Council, I am satisfied there is evidence to suggest the footway was a potential risk to the public. Therefore, on balance, it is likely the Council would have closed the footway even if it had formally recorded its risk assessment and pedestrian evaluation.
  5. Further, the Council has explained its reasons for not implementing any alternative path for pedestrians. It explained it was not cost effective to implement any alternative path because the footway usage was low. While the Council did not formally record its evaluation of pedestrian use, there is evidence to support the Council’s position the usage is low. There has been a low number of enquiries made to the Council about the footway; 10 enquiries over approximately four years. This is supporting evidence which suggests pedestrian usage of the footway is low and affecting a relatively small number of local residents. Therefore, on balance, it is likely the Council would not have implemented any alternative path for pedestrians even if it had formally recorded its risk assessment and pedestrian evaluation.
  6. Finally, the evidence suggests the Council did not follow the correct process when it closed the footway. However, on balance, it is likely the footway would still have been closed had the Council followed the process. This is because there was evidence the footway was a risk to pedestrians.
  7. Therefore, at this stage, the evidence suggests there is no significant injustice caused to Mr Q. This is because the outcome would likely have been the same even if the faults identified had not occurred.

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Final decision

  1. I have found fault with the Council’s actions, but the faults did not cause Mr Q any significant injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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