The following report only addresses the issue of what consultation took place. It does not comment on the actual design or location of the proposed bridge because such matters are outside the scope of the Ombudsman. Nevertheless, the report provides a useful insight into the lead up to the announcement of the proposed redesign.

Although the Ombudsman does not uphold the complaint, the report makes it clear that there were shortcomings in the way BW handled the consultation.

Note: This document has been copied by OCR, so formatting has been altered.

The Ombudsman's Report (re Long Horse Bridge, Derwentmouth near Shardlow):
Complaint No:  101

The Waterways Ombudsman
Report on an investigation into a complaint by Mr John Cooke

1. Background to the complaint
1.1 Mr Cooke is a boater and lives close to the site of the former Long Horse Bridge, which went across the river Trent near its confluence with the River Derwent and the Trent and Mersey canal (in Shardlow). In 2003 the concrete footbridge was demolished on grounds of safety, and British Waterways were obliged to provide a replacement as the bridge had carried a public footpath. The County Council were keen that the new bridge should also be suitable for use by cyclists and horseriders, and were prepared to offer funding for that purpose. Planning permission was obtained in 2005 to build such a multi-user bridge, but 140 metres upstream of the site of the previous bridge, in a bowstring design and 3.9 metres wide.

2. The complaint
2.1 Mr Cooke complains that there was wrongly no consultation over the proposed significant changes to the bridge before firm plans were announced, and that as a result the changes are unacceptable and not justified.

3. British Waterways’ policy on consultation
3.1 British Waterways have published an operating instruction which they say
sets out their minimum standards for informal consultation as conducted through
user group meetings. They have not published other specific information about
their policy on any other form of local consultation, except to say (in their report
on a consultation on’Improving Openness and Accountability in December 2003)
that informal procedures may also be used and would be explained at the start
of the consultation.
3.2 The website says that to make consultation with user groups effective they
will supply enough information and allow enough time so that those whom they
consult can give a considered response. The policy on user group meetings,
describes how a draft agenda will be published at least two weeks before each
meeting, and draft notes of the meeting will be issued no later than three weeks
after the meeting.

4. Chronology of key events
September 2003
Officers recommended to the County Council that they negotiate with British Waterways with a view to taking over ownership and responsibility for a new bridge suitable for multi-user use, to link into a bridleway route for the Midshires Way through the south of the County. British Waterways would be asked to contribute £575k. The County Council would contract to obtain a design for the new bridge.

Undated but appears to be mid 2004
A British Waterways operations manager prepared a report about the replacement of the bridge. He listed three alternatives:

- British Waterways building and maintaining a 2.0m wide bridge. It would cost
£780k plus regular maintenance costs;
- British Waterways building and maintaining a new wider bridge, with a
contribution from the County Council. This was judged unacceptable as the
County Council would only fund widening the bridge to 2.7m, whereas British
Waterways believed that a 3.9m bridge would be needed to segregate
pedestrians and horses for safety;
- British Waterways transferring responsibility for the bridge to the County
Council, and making a payment to them to represent their obligation to rebuild
and maintain a footbridge. This option was recommended, and would involved
British Waterways paying £510k. If British Waterways could guarantee that their
payment would be made in April 2005, the County Council would accept liability
for reconstructing the bridge.

30 September 2004
A local user group meeting was held. The notes of the meeting record the following information was provided by British Waterways regarding plans about the bridge:

'Derbyshire County Council will be taking over responsibility for Long Horse Bridge and will therefore be the point of contact for all future works.'

Undated but appears to be during this period
The operations manager prepared a further report. This said that the original scheme could not go ahead because the County Council had not obtained some of the grant funding upon which they had been relying. The options had been reviewed and an alternative crossing, 140m south of the existing site was feasible. The significantly reduced span would allow a bridleway bridge to be constructed within the available funding. The County Council had agreed to the principle of a relocated bridge, but were now unwilling to project manage it or take the construction risk. The net cost to British Waterways would be £601k, after a funding contribution from the County Council was taken into account.

December 2004
British Waterways produced a plan for the bridge. This was a single span bowstring bridge, upstream from the site of the original. (They say this plan was used at the user group in February 2005.)

February 2005
An environmental appraisal of the proposed bridge was updated by British Waterways.

24 February 2005
A local user group meeting was held. The notes of the meeting record the following information was provided by British Waterways regarding plans about the bridge:
‘....-agreement has now been reached with Derbyshire County Council. British Waterways are designing and building the bridge which will then be taken over by the County who are part-funding the project. It is proposed to be a 50m span bowstring truss steel bridge, approximately 140m upstream of the old location. Derbyshire are leading on the planning permission and will arrange for the necessary footpath diversion. It should be on site in July 2005 and completed by Christmas. The bridge will be able to accommodate the future bridleway aspired by the county council'

4 April 2005
The notes of the February meeting were circulated.

16 May 2005
The County Council applied for planning permission for the bridge, at 3.9 m wide.

9 June 2005
A site notice was posted offering the chance for interested parties to make observations. Two local residents (one of them Mr Cooke) did so. Planning permission was later granted.

5. Mr Cooke’s views
5.1 Mr Cooke would like the plans for the replacement bridge to be reconsidered. He says that:

- the bridge was an important heritage feature, and should be replaced on
the same site;
- the resiting and bowstring design mean that it would be impossible to tow
a boat between the canal and the main route downstream. This important
not just to permit use by horseboats but as a safety measure to facilitate
manual towing (bow hauling) of a boat in the event of engine or other
failure;
- the proposed bridge is far wider than necessary for horses and cyclists
and will invite unauthorised use by motor vehicles;
- for about a mile either side of the proposed bridge there is no suitable
track for a multi-user path or bridleway;
- the resiting (to a point where the river is narrower) will save money, but
alternatively money could have been saved had the bridge been kept at
its previous width;
- the cost savings British Waterways says the bridge will achieve have been
inconsistent;
- the proposed bridge requires embankments to enable it to gain sufficient
height, which will ruin the views over the landscape, whereas the original
bridge rose elegantly from the natural riverbank.

5.2 He is not a member of the local user group so was not present at the
meetings where the replacement bridge was mentioned. However:
- he is concerned that the meeting of September 2004 provided no
information about the design of the bridge, which he feels accounts for
the lack of comment (other than pleasure that a replacement was to be
provided) at that point;
- information given to him by others leads him to doubt that the design of
the bridge was explained to users in the detail later claimed;
- he questions whether user group meetings at six monthly intervals are the
appropriate way to consult over major proposals such as this. It is clear to
him that plans were finalised between British Waterways and the County
Council in between meetings without any consultation over the siting and
design. He would expect debate to be encouraged before plans reached
such an advanced stage, so would have expected a specific meeting to be
arranged to discuss a proposal of this nature.
5.3 Mr Cooke has provided me with a statement from one person shown as
present at the February 2005 meeting. That person says that no plans have
been forthcoming at any of the user group meetings where the issue was
discussed. I have spoken with another person present at that meeting who said
that no drawings were shown and that whilst he thought the positioning
upstream had been mentioned, he did not think the distance had been given.
 

6. British Waterways’ views
6.1 British Waterways said in written comments that, when the proposals were
raised at the user group meeting in September 2004, there was no comment
from the floor by way of criticism and the general feeling was positive.
6.2 At the user group in February 2005, an engineering manager gave a
presentation. He presented plans which outlined the design and new location of
the bridge. (Later they explained that there was no formal presentation though
plans were available for the meeting, and an offer was made to answer any
questions, but none were raised.) He also explained that the County Council
were applying for planning consent, which is the normal opportunity for
democratic involvement, and were still jointly funding the project. It was at the
time anticipated that works would be complete by the end of 2005. Again the
mood of the meeting was positive, there being no contentious issues and the
general feeling was of delight that a bridge was being built.
6.3 At a further user group meeting it was confirmed that planning permission
had been given, and funds were in place but there was a delay due to difficulties
in reaching an agreement between a landowner of some of the land involved and
the Council.
6.4 In June 2006 I interviewed on the telephone the engineering manager
involved. I questioned whether, if the Council had agreed to build the bridge,
British Waterways would have had no more to do with it as the minutes of the
September user group meeting seemed to suggest. He said that they would have
still insisted that any contractors obeyed their code of practice for works. He
recollected that a factor in the change of plans after September 2004 was that
initial tenders received were far higher than expected. Various options were then
considered, including the one chosen of moving the bridge upstream so that a
single span could be used.
6.5 The engineering manager said that he had not made a formal presentation to
the user group meeting in February 2005, but had taken an A3 size copy of the
plans and held them up whilst describing what was then intended. He believed
that he had given all the details later recorded in the notes of the meeting,
including the distance upstream. He thought he had offered to discuss matters
afterwards if anyone had any queries but no-one did. He felt there had been a
generally positive reaction at the meeting.
6.6 I asked if any consultation other than via user groups was ever done. He said
not really-when planning permission was required that gave a chance for public
consultation.
6.7 He explained that the bridge had still not been built as there were outstanding issues about acquiring the land required to build it.

7. Conclusion
7.1 First I think it will be important to be clear about:
- how I must approach the matter;
- the respective responsibilities of British Waterways and the Council

7.2 I can only consider whether British Waterways considered the matter in the
right way: unless there is evidence of maladministration, it is not within my
powers to question the decision taken. Many decisions will have numbers of
people who favour one approach, and numbers who do not. That fact that some
people disagree with the decision is not in itself evidence of maladministration.
7.3 The new bridge is to be a joint venture between British Waterways and the
County Council. It is not within my remit to consider the actions of the Council
and I mention them only for completeness. Nothing I say should be interpreted
as a comment upon their actions.
7.4 British Waterways have a responsibility to ensure that at least a footbridge is
available to maintain the right of way along the previous footpath. The Council
were keen to have a wider bridge to accommodate cyclists and horseriders and
were therefore prepared to contribute part of the cost if a wider bridge was built.
To save money it was decided, I think in late 2004, that the bridge should be
built 140 metres away from the previous site, where the river is significantly
narrower. It was not maladministration for British Waterways to seek to work
with the Council as they did, or to take into account costs when considering the
design and siting of the bridge. I am not surprised that the costs quoted have
varied - over time, with different designs and as different estimates or tenders
have been received.
7.5 Mr Cooke complains that British Waterways did not properly consult about
the plans for the bridge. British Waterways point out that the plans for the
bridge were discussed at user group meetings. Mr Cooke does not believe that
what was done there was adequate: the plans were quite firm by the time of the
February 2005 meeting and he questions whether as much information was
given there as British Waterways say.
7.6 I am rather concerned about the statement at the September 2004 meeting
that the Council would be the future point of contact for all future works. It
seems to suggest that users who wished to express any views should direct
comments to the Council rather than British Waterways. However even if the
Council had built the bridge, British Waterways (and their users) would retain a
particular interest in the design etc being suitable from a waterways perspective: whereas the County had interests from planning and footpaths perspectives. So for example only British Waterways would really be in a position to assess the significance of Mr Cooke’s concerns about the implications for towing boats.
7.7 I am also uneasy about the reference in comments made to me about the
planning application offering the normal opportunity for democratic input. In the
sense of input to the process of obtaining planning consent that is correct, but I
would be very concerned if British Waterways expected that to provide the
opportunity for all views to be taken into account. Only material planning
considerations can be taken into account when a planning application is
determined: there would certainly be other issues which waterways users might
reasonably raise which could not be taken into account in that process. British
Waterways, if it wished to ensure views of users were fully considered, would
still have needed to make other arrangements for that.
7.8 However, in the event, there was some consultation by British Waterways in
that the issue was discussed at the February 2005 user group meeting: by then
plans had changed significantly. Apparently because of changes in what the
Council could do, British Waterways were now to design and build the bridge and
it was to be sited 140 metres upstream.
7.9 British Waterways current policy on local consultations does not require any
form of consultation beyond that at user group meetings, though leaves room for
other informal consultations to take place. I can appreciate the point Mr Cooke
makes about six monthly user group meetings - that plans may move on and
decisions be made in between meetings, meaning that mention at the next user
group may be too late. On the other hand I can also see that it would be very
onerous on British Waterways to expect them to conduct individual consultations
or meetings on each of the large number of matters of this sort about which
individuals or groups might wish to express a view. In the end it is not for me to
determine what British Waterways’ policy on consultation should be: they did
broadly follow their policy in that (it is not disputed) some information was
provided about plans for the bridge at user group meetings and opportunity for
comment was given.
7.10 However there is a dispute about how much information was given. The
notes of the meeting indicate that those at the February 2005 meeting were told
about the design and the distance upstream of the old bridge (but not the width
of the new bridge).   The manager who introduced the issue confirms that he
gave all the information in the notes. On the other hand, two users at the
meeting (in contact with Mr Cooke) have suggested rather less information was
given. Neither remembers seeing any plans, though one accepted that the fact
that the bridge had been moved upstream (but not by how far) had been mentioned. I did consider whether to seek further evidence about what was said at the meeting: but have decided it is unnecessary. Let me explain why.
7.11 The evidence before me now is sufficient to convince me that at the very
least the fact that plans for the bridge had changed and it was now to be
upstream of its previous position was mentioned at the meeting in February
2005. At the very least information about its design and the distance from the
old bridge were given in the notes of the meeting, which were circulated in early
April 2005 ie rather later than the policy (see paragraph 3.2) requires but before
the application was made for planning permission. So at least by then members
of the user group would have been alerted to the significant changes (including
the possibility that the planned design and siting would making towing/hauling
impossible): in time for them to make any enquiries and representations they
wished to British Waterways before the planning application was submitted. So
even if, as alleged, full details were not given at the user group meeting (and I
take no view on that), I cannot see that that would be likely to have made a
significant difference to the outcome given when the minutes were circulated.
7.12 So in sum, it is not within my remit simply to question the decision made
about the design and siting of the bridge, or the policy on consultations. The
matter was raised at user group meetings as that policy requires. Even if there
was maladministration in that less detail was given than the notes indicate (on
which I take no view), that should not have resulted in any significant injustice -
users receiving the notes of the meeting (which contained a reasonable amount
of detail) would still have had the opportunity to comment before the planning
application was submitted. I do not uphold the complaint.
 
 

Hilary Bainbridge 24 July 2006
Waterways Ombudsman
 
Note: since this report was issued J Cooke has been advised by a third person who attended the User Group Meetings that:

'I was at some of the user Group Meetings mentioned in the Ombudsman’s Report.

I can say there was no consultation offered. We were presented with a statement of what had been decided.

There was a plan of a bow string bridge held up for information only as I recall with the comment “This is not for discussion”.
 

It was said at one of the meetings [Sept 2004], the rebuilding is now in the hands of Derbyshire County Council and that is where any enquiries should be made.