Devon County Council (20 003 743)

Category : Transport and highways > COVID-19

Decision : Not upheld

Decision date : 04 Jan 2021

The Ombudsman's final decision:

Summary: Mr F complains about the Council’s decision to close the road he lives on in response to the COVID-19 pandemic. We do not uphold the complaint, finding no fault in the Council’s actions.

The complaint

  1. I have called the complainant ‘Mr F’. He complains at the Council’s decision to close the road where he lives to through traffic introduced as an Emergency Active Travel Measure in response to the impact of COVID-19. Mr F says that in introducing this measure the Council did not assess the inconvenience its actions would cause. It also wrongly asserted his road is not an arterial road.
  2. Mr F says the Council’s actions led to increased journey and distance times when he used his car. Mr F says he uses his car more since the pandemic began as he no longer wants to use public transport. Mr F also had concerns that emergency vehicles would take longer to access his home if required.

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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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault; or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
  1. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
  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 issuing this decision statement I considered:
  • Mr F’s written complaint to the Ombudsman and any supporting information he provided including that in a telephone conversation with him.
  • Replies given to Mr F by the Council in response to his complaint and enquiries made to his MP.
  • Information provided by the Council in reply to our enquiries.
  • Relevant law and guidance as referred to below.
  1. I also gave Mr F and the Council opportunity to comment on a draft decision statement which set out my thinking about the complaint. Any comments made in reply were considered before I issued this final decision statement.

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What I found

Legal Background

  1. In May 2020 the Government’s Department of Transport announced that it had allocated money to councils in response to COVID-19 to fund ‘Emergency Active Travel Measures’. It described these as measures designed “to make it easier for people to choose alternatives to public transport, a series of measures are being rolled out to encourage more people to cycle instead […] to create pop up and permanent cycle lanes and reallocate road space”:
  2. The 1984 Road Traffic Regulation Act allows local councils which are highway authorities to issue Temporary Traffic Regulation Orders (TTRO’s). These can, for example, be used to shut or restrict roads to vehicular traffic for use as temporary cycle lanes. They can last for a maximum of 18 months.
  3. The 1984 Act has always allowed councils to issue TTROs “because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works”. Further to the Government announcement above it passed a Statutory Instrument which allowed councils to use this part of the Act to issue TTROs “for purposes connected to coronavirus”. The Instrument gave councils specific instructions on how they should publicise and explain the use of such TTROs. The Government also advised the TTROs could be used for a range of purposes ‘connected to coronavirus’ including “restricting certain roads to certain types of traffic”.
  4. The law only required the Council to give seven days’ notice of the TTRO. It did not require it to consult or reconsider if it received objections.

Key facts

  1. In June 2020, the Council made several TTROs, closing roads to through traffic in the part of the city where Mr F lives. This included a closure on the road he lives on. The TTRO would run for a maximum 18 months. It publicised the reason as: “This temporary restriction is considered necessary to enable - COVID-19 TRANSPORT RESPONSE WORKS FOR SAFER ENVIRONMENTS”.
  2. These road closures created a cycle route running in an approximately east to west direction. Mr F’s road runs in an approximate north to south direction connecting two classified roads that also run into the city centre along an approximate east-west axis. I noted the impact of the road closure meant Mr F would have to follow a diversion if he wanted to go north.
  3. The Council says it created the cycle route, recognising that COVID-19 would reduce people’s use of public transport. Its website explained it wanted to create a quiet route for cyclists. It told Mr F it only closed sections of roads “away from the main arterial routes” into the city. Mr F points out the road already has a cycle-path marked on one of the two footways that border the carriageway. I note this is a shared space with pedestrians.
  4. The Council told Mr F its Highway & Traffic Order Committee had approved the road closures in July 2020. It would then review the closures in October 2020. It was considering “wider access changes” in the area where Mr F lives but would consult further about these. So, Mr F would have “opportunity to influence what changes remain and which will be removed or relocated”.
  5. Although following another meeting of the Highway & Traffic Order Committee in October 2020, the Council decided to end the closure of Mr F’s road. It said it did this in response to “negative feedback” from residents affected by the closure. Mr F has explained to me that local residents completed petitions objecting to the road closure.
  6. Mr F has confirmed to us the Council subsequently removed the temporary barriers closing the road to through traffic.

My findings

  1. We would expect the Council, in line with our principles of good administrative practice, to have undertaken some analysis of the impact of the closure before introducing it. It is not clear it did this. The Council reported the closure to its Highway & Traffic Orders Committee in July 2020. But this contains no analysis of the temporary road closures nor did it seek Members’ views. Instead, the relevant report focused on the need for a road crossing in another location along the cycle route. The report only asked Members to comment on that and not the temporary road closures elsewhere on the route.
  2. However, I must balance any concern I have about this lack of record against the following considerations. First, I consider the Council could reasonably decide the policy aim of creating a quiet cycle route took precedence over the inconvenience caused to some living along that route. I consider when the Government introduced Emergency Active Travel Measures (and the associated Statutory Instrument to amend the Road Traffic Regulation Act 1984) it aimed to make it easier for councils to create cycle routes at short notice. It explicitly advised local highway authorities they could use these powers to close roads to some forms of traffic. The Council has therefore used the powers given to it in response to the COVID-19 pandemic in the way the Government intended. Mr F may disagree that the policy objective of creating more cycle lanes should have such priority. But as I explained above, disagreement alone is not reason for me to find fault (see paragraph 3).
  3. Second, the bar to find fault in the case of a TTRO is high as the Council was under no duty to carry out a consultation exercise with residents affected. I also note here that while the Council passed TTROs that could last for 18 months, it reviewed their impact after only three. I consider that good practice. While there were limitations in the July 2020 consultation with Members, they received a more comprehensive report on the impact of the road closures in October.
  4. Third, I also considered the Council could reasonably decide the road Mr F lives on is not an arterial route. This term commonly describes a classified or main road into a city centre or one serving as a ring road. Mr F’s road connects two classified roads but is not itself classified nor part of any ring-road network.
  5. I consider the factors listed in paragraphs 20 to 22 outweigh the concern I have expressed in paragraph 19. For that reason, I do not find fault in the Council’s actions.
  6. Further, even if I was to come to a different view in the question of fault, I note that as part of its review of the road closure in October 2020 the Council listened to the experience of Mr F and others caused inconvenience. This led it to re-open the road to through traffic. This factor would limit any injustice caused by the closure. It also means further investigation by this office is unlikely to achieve any different or better outcome for Mr F. These factors would point towards us discontinuing the investigation in any event.

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Final decision

  1. For reasons set out above I do not uphold this complaint. I find no fault in the Council’s decision to temporarily close Mr F’s road.

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Investigator's decision on behalf of the Ombudsman

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