The nature of the reply is perhaps unsurprising. It speaks about how various guidance (e.g., LTN 2/08) is not applicable to routes that are supposedly not part of the public highway i.e., through Council-owned land. It doesn’t specifically clarify how access restrictions are compatible with the Equality Act, and indeed goes so far as to say that there is no legal obligation on the Council to provide uninhibited access to these routes.
It is noted that the Council has no specific duty (to which I infer to mean a statutory or legal duty) to encourage residents and visitors to adopt active travel, but despite that, it is stated that it does do so through its liaisons with the County Council and Cycle Forum.
With regard to the matter of liability under the Occupiers’ Liability Act (points 3 and 4, below), there is a degree of contradiction here. I’m reading the response as first saying the Council’s liability would be down to the circumstances in an individual case, but it then explicitly states that the Council cannot be held liable for the actions of third parties. It notes that ‘reasonable precautions’ are taken to protect the public, but in point 4, it fails to provide clarity as to how simple, less restrictive measures would not be considered reasonable protection.
It is said that the use of access restrictions is considered appropriate and necessary to protect the public, but there’s no explanation as to how that decision has been determined, when it was determined, nor the circumstances surrounding it – other than the perception of a risk of unauthorised use. The response also notes that in the event of persistent misuse, the Council will take steps to address the issue to protect the public – note though, that in early correspondence, is has been confirmed that the Council is unable to provide evidence of any misuse on this specific route.
So, my summary understanding of the situation so far (including from previous correspondence) is as follows:
- Weddington Walk is part of the National Cycle Network that is promoted by Sustrans, but at this point it runs across Council-owned and maintained land. Despite being graded as part of NCN Route 52, Sustrans has no current involvement in that section of the route with particular regard to its quality, accessibility and suitability for purpose – this is considered to be solely NBBC responsibility, due to land ownership.
- The route has access restrictions in the form of k-frame barriers at various points along its length. The Council is unable to provide any evidence of misuse of this route by unauthorised users (e.g., motorcycle riders) and therefore these barriers exist solely as a precaution from a perceived hazard of unquantified severity.
- The perception of this hazard exists and these barriers are deemed necessary despite: other sections of this route being less restricted; there being no access restrictions to a neighbouring open space (Sandon Park) which has the potential to be abused; and other off-road shared space routes in the Borough being less ‘protected’ – an unexplained contradiction.
- Whilst the Council considers k-frame barriers to be appropriate and necessary, it has not evaluated or tried any simpler, less restrictive measures at the Weddington Walk location (e.g., single bollard and signage coupled with intelligence-led enforcement).
- I am inferring that the Council believes it has received no complaints from lawful users about the presence of these k-frame barriers, and hence no review or Equality Impact Assessment conducted to determine whether such restrictions may be discriminatory to those unable to pass them easily and safely. This is despite, and in contradiction to, me having raised the matter since July.
- Whilst the Council states it encourages active travel choices amongst its residents and visitors, it is not backing that up through providing accessible and unhindered routes – or at least, the Council statement only applies to those persons riding ‘regular’ bicycles and who can easily and safely dismount where currently necessary, to the exclusion of anyone riding a non-standard cycle, tricycle, hand-cycle, cargo bike, bike with trailer or child seat etc.
- Since the Council states routes are not considered to be part of the public highway and that guidance documents such as LTN 2/08 would not apply, the Council ignores such advice and guidance where it would still be valid in creating high quality, accessible cycleways. Despite Weddington Walk being part of the National Cycle Network, the Council has avoided further comment on the use of Sustrans guidance (which is specific to this purpose), of which it is aware but chooses to disregard in favour of undocumented local experience.
I will put this summary back to the Director in question (email sent on 04 December 2018), to see if the Council would like to correct me on this summary understanding (with supporting evidence), or make any further comment. However, I feel like I’m exhausting my options now with writing to Council staff.
The next step then would perhaps be to involve Sustrans, since they have recently released a report highlighting the poor condition of the National Cycle Network in general. I may also consider writing to my councillor to see if he will support a change in policy.
The email response in full is copied below:
“I refer to your questions as set out below and have responded to them in blue as follows:
- You have said you have no policy or strategy with regard to cycling. Whilst the County Council’s role is clear with regard to highways, Nuneaton and Bedworth Council has off-road shared-use paths, including Weddington Walk and the Wembrook Trail. You have also said that you liaise in general terms with Sustrans (the walking and cycling charity) and that you attend the Nuneaton and Bedworth Cycle Forum. With the Council being involved in such a manner: Why does the Council not have its own strategy or policy to direct its decisions with regard to cycling aspects within its remit?Cycleway provision is dealt with through the Open Spaces Strategy – through commitments made in the strategy to develop and extend cycle routes within parks and open spaces and as part of extended and enhanced ‘green infrastructure’ networks. These commitments are to the appropriate / necessary level of detail needed in a broad strategic document.
- Does the Council not agree that it has a duty (along with the County Council and central government) to encourage its residents and visitors to adopt active travel (walking and cycling) choices to reduce traffic burden on local roads and to improve the health and wellbeing of the Borough?There is no specific duty but the Council actively encourages residents to adopt active travel choices to improve the health and well-being of the Borough. The Council liaises with the County Council and with the Borough Cycling Forum.
- You note that you could be held accountable under the Occupiers’ Liability Act (OLA) should a member of public be injured or suffer loss due to a motorbike being present on the shared-use path, with resulting insurance claims. Please explain how your claim of accountability under the Occupiers’ Liability Act squares with the disparity of access controls at other locations in Nuneaton where motorcycle access to paths is comparatively easy. Indeed, other parts of the Weddington Walk route remaining accessible to motorcycles, as previously noted.Whether any liability arises from trespassers using Council-owned land is a matter of fact and degree, to be judged in individual circumstances. The Council takes reasonable precautions to prevent the use of land for unauthorised purposes and cannot be held liable for the actions of third parties.
- Please explain how standard prohibition notices (e.g., the common ‘no motor vehicles’ highways sign) and a single bollard with a 1.5m clearance on either side would not be enough here to absolve the Council from liability in the event of a collision involving a vehicle that had no legal right to be there (i.e., by making it clear that motorcyclists are not to use the route).Where the Council is aware that persistent misuse of a site is occurring, it will seek to address the issue in a more practical way to protect the public.
- Your response continues to state that you retroactively consider access issues e.g., from disabled users, only when such an issue is raised. This therefore means that the Council is requiring an individual to be disadvantaged through hindered travel and for that person to then decide to make a complaint, following through a process to ensure the access issue is resolved – a process that will take time, effort and ongoing disadvantage until its resolution.
a. How does this policy fit with the requirements of the Equality Act 2010, to avoid disadvantage caused by a provision, criteria or practice or a physical feature that puts a disabled person at a substantial disadvantage compared to a non-disabled person?Any proactive action to undertake major works by the Council is assessed by the Council’s Equalities Officer who may recommend that an Equality Impact Assessment be undertaken. However, there may be long-standing assets that have caused no significant difficulty to users which, through force of circumstances, come to light much later. Where this occurs, the position will be reviewed in the light of the issues then prevailing and appropriate mitigations taken.
- Does the Council see it as right that such evident obstructions should continue to exist, where it is aware of them, knowing that they can cause hindrance, despite there being no specific complaint raised?The use of barriers to restrict access to lawful users is considered both appropriate and necessary to secure public safety. That there are no issues raised by way of complaint can mean one of two things: either the barriers are effective; or there is no issue. The Council does, however, apply learning from other sites and consider it likely that, without barriers, unauthorised use would emerge.
- Does the Council not agree that there is a duty to keep routes open for all users on a proactive basis to ensure that hindrance does not happen at all?The Council considers that restricted access points preserves the safety of the public on its sites. There is no legal duty to provide uninhibited access points.
- You have said you would welcome improved guidance from Central Government:
Are the appropriate Council officers aware of the DfT Local Transport Note LTN 1/12 Shared Use Routes for Pedestrians and Cyclists or Highways England Interim Advice Note 195/16 Cycle Traffic and the Strategic Road Network? LTN 1/12 specifically makes reference to access controls (section 8.14*) and how they should only be installed ‘after a definite need has been established.’ The Interim Advice Note specifically states A- and K-frame barriers should not be used (2.3.8).This guidance relates to cycleways on the public highway, not Council-owned land. I can’t locate paragraph 8.14 of LTN 1/12. 2.3.8 of the Interim Advice note relates to preventing motor traffic access to a cycle route. Neither are relevant to Council-owned land.
- If the appropriate Council officers are aware of the above guidance from Central Government, are they referenced when considering the impact of changes to shared-use routes?The cycle routes are across Council-owned land and so the guidance is not relevant.
Director – Arts, Leisure and Democracy”
* It seems I made an error when asking the question in point 8, above. I too cannot find the section I referred to in LTN 1/12.
NOTE: This article was updated on 04 December 2018 to revise the summary understanding slightly, to reflect what was actually sent to the Director.