Liability fears at heart of council's 'no gritting' footpath policy in areas including Lurgan, Portadown, Craigavon and Banbridge

The rationale behind the local authority’s legal position was explained at an Environmental Services Committee meeting of the council in December.

The council and the Department for Communities (DfI) have agreed to work in tandem regarding the occasional gritting of footpaths, with a Memorandum of Understanding signed by both statutory bodies to define their respective roles within this broad agreement.

The document states: “It is appreciated that neither DfI Roads nor ABC have a statutory obligation to salt footways and are not resourced for this work, but under the Memorandum of Understanding (MOU), footway clearance and salt / grit spreading may be undertaken by DfI and/or ABC staff, depending on resources available at the time.

“DfI shall ultimately determine when there is deemed to be extreme and prolonged weather conditions, and then request ABC to undertake the services, subject to ABC’s unilateral discretion based on availability of resources and capacity at any given time.”

Alderman Paul Greenfield explained that he was unhappy with the one-sided nature of the partnership agreement – with DfI allowed to request gritting from ABC Borough Council, while the council is not allowed to ‘go it alone’ and grit footpaths on occasions, without DfI having requested it in the first place.

The DUP representative for the Banbridge DEA stated: “It says that during extreme conditions following heavy snowfalls or prolonged freezing – to be determined by DfI – ABC staff may be called upon to assist DfI with footway clearance, salt / grit spreading on an agreed schedule of footways.

“If we decided we wanted to do something as members here, would we be able to say ‘Yes we can now do that’, or are we always going to be in the situation where [we can only act] if DfI decide to do it? Because if it snows one day and somebody falls in a street in Banbridge, it’s a quite a hill.

“Shop owners would be [telling] us sometimes they’re scared to put grit out because nobody knows if it is their responsibility or not.

“I don’t think we should be a situation where we can’t decide if [we can] actually do something if we have an event on, or if we felt there was a special reason why this would need to be done.”

Head of Environmental Services, Barry Patience explained that the council’s precautionary approach is all to do with liability.

“DfI are not responsible for gritting anywhere. They endeavour to do certain things on roadways,” he said.

“If somebody slips when they are out in the car and the road isn’t gritted, that’s their concern because they are responsible for their car.

“[DfI Roads] are not responsible for gritting footpaths either, however what we have agreed is that if they deem it necessary – for example in town centres – they would ask us to do this work, or they would ask if we could assist them with this work.

“We cannot go and do that work because we are not underneath their liability. But if we carry out this work at their request, we are then protected to a degree in relation to their liability.

“It’s ‘best endeavours’, therefore if we had staff out and they gritted a footpath and missed a bit, it is not our liability then if someone falls on that bit that isn’t gritted.

“[In] my personal opinion – shops would be exactly the same. In other words if they were doing it for the right reasons the liability would be difficult to prove.

“The question you were asking is ‘Could we start and to do this ourselves?’

“Firstly, we wouldn’t be covered in relation to liability. Secondly, we would have to take staff off other duties, and thirdly, there is no budget for any of this sort of [thing].”

For the above reasons, Mr Patience explained that council staff would only assist in gritting footpaths when episodes of cold weather are prolonged and severe.

He added: “It has happened maybe four times over the last 10 years that we would do something like this. If we were to do it every time it was freezing or every time there’s a frost, our staff would then be doing nothing else and then we’re back to the legal issues as well as the cost. The other councils in Northern Ireland are exactly the same.”

Councillor Lavelle McIlwrath (DUP) recalled just how treacherous conditions were last winter in the car park of Portadown shopping centre, Magowan West: “I’m thinking of Magowan West last year when we had snow, then it started melting, then it froze and the footpaths and the car parks were a nightmare, and there were a number of falls.

“We lift the revenue off the car park. What’s the situation with (…) those car parks that we manage and lift the revenue of?”

Mr Patience explained that the situation was similar in terms of liability.

“It’s a similar sort of question and it’s mostly about liability. We have on a number of occasions had legal advice that if if we were to grit (…) one day and didn’t grit another, and that was part of our process, that’s where we would have liability,” he said.

“What our legal advice basically says is that we are better not to grit those areas, because then the expectations of members of the public aren’t there that it is gritted.

“It’s actually better protection not to do it than to do it. Some of the car parks have grit boxes and people may wish to throw some grit down, but again that is not the same as Council setting a precedent and saying ‘We are going to grit a car park’.

“If we then forget, or if it’s on Christmas Day for example when we don’t have staff out, we’re into a whole pile of trouble.”