Summary: Mr B complains the Council did not properly investigate his objection to the procedure in making a traffic management order. The Ombudsman will not investigate Mr B’s concerns about the procedure as he had a right to appeal. We find fault in delays responding to Mr B’s complaints, but this did not cause a significant injustice.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council did not follow proper procedure when introducing permanent traffic management orders (“TMO”). He says the Council built cycle lanes in waiting and loading space, without either holding a public inquiry or introducing an experimental TMO. He says the Council did not respond properly to his objection.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. 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)
5. 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

6. I considered the information Mr B provided and spoke to him about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments and considered these before making my final decision.

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What I found

Law and Regulations

7. The Road Traffic Regulation Act 1984 (“the Act”) allows councils within Greater London to make TMOs on a permanent, temporary, or experimental basis. The procedure for making TMOs is set out in the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the Regulations”).
8. In the case of permanent TMOs, the Regulations say councils must consult certain bodies, publish their proposals and consider objections. If those proposals include certain restrictions on waiting and loading, and the council receives objections that it does not consider irrelevant or frivolous, the council must hold a public inquiry.
9. Different requirements apply to experimental TMOs. The council must publish a notice of making. The notice must state the council will consider whether to make the order permanent and that anyone can object within six months.
10. In both cases, when the council publishes the notice that it has made the TMO, it must include a paragraph advising that anyone who believes it did not follow the proper procedure may appeal to the High Court.

Background

11. In July 2016, the Council published a notice of proposals in the Gazette for several permanent TMOs. The notice included a note that the Council intended to make further experimental orders, including ‘waiting and loading’ restrictions.
12. The Council received and considered a significant number of objections. It made certain changes before making the orders permanent in July 2018.
13. In August 2018, Mr B made an objection to the Council. He said the Council had not followed proper procedure as it had made restrictions about waiting and loading permanent without holding a public inquiry. The Council responded that it had not yet made the experimental orders relating to waiting and loading and would do so in the next few weeks.
14. Mr B was not satisfied with the response and asked for further explanation in early September 2018. He questioned how the orders could be experimental when the works were built permanently. The Council responded in December 2018. Its letter confirmed the Council had now made the experimental orders. It made these orders in early December 2018 and published a notice in the Gazette.
15. There is no indication Mr B objected directly to the experimental orders. However, he continued to raise concerns that the waiting and loading restrictions were made permanent in July 2018. He did not receive a response so chased in March 2019.
16. In April 2019, Mr B made a formal complaint about the lack of responses. The Council investigated the matter as a Stage 1 complaint. It found there had been some delay in responses and apologised for this. It reiterated the position that the Council did not make experimental TMOs until December 2018. It said this gave a period of six months for people to raise any objections. Mr B remained unsatisfied and asked to escalate his complaint.
17. The Council did not respond initially as Mr B contacted the Ombudsman. Further delays followed as there was some back and forth in which Mr B disagreed with the Council’s summary of complaint. The Council sent a final response in November 2019.
18. The Council made the experimental TMOs, including waiting and loading restrictions, permanent in June 2020.

Findings

TMO procedure

19. I made enquiries to establish the nature of the concerns Mr B raised and the procedure under which the Council made each TMO. However, I have decided not to continue my investigation into Mr B’s complaint about the procedure.
20. Mr B had an alternative legal remedy as he could have applied to the High Court if he considered the Council did not follow the correct procedure. The complaint is therefore, ordinarily, out of our jurisdiction. I have not exercised discretion to investigate the complaint for the following reasons.
21. The Council included a paragraph about the appeal rights in its notice, which Mr B read in the Gazette in July 2018. It also informed Mr B of the appeal rights in its response to his complaint. Therefore, Mr B had the opportunity to apply to the High Court if he wished. It was reasonable then for Mr B to have used this alternative.
22. Mr B says the cost of bringing court action would have been prohibitive. I have taken this into account, but it does not change my view. The normal procedure to challenge an order after it is made is via the High Court. If I were to exercise discretion, it is unlikely I would be able to find fault.
23. Mr B complains the Council should have held a public inquiry before July 2018, because it made permanent TMOs that included waiting and loading restrictions. However, this is not the case. The permanent TMOs in July 2018 did not introduce waiting and loading restrictions. The Council introduced these restrictions on an experimental basis in December 2018 and made them permanent in June 2020. There is no evidence Mr B objected directly to the notice of making in December 2018.
24. I understand Mr B makes the point that physically completing the works, in of itself, may have prevented waiting and loading. However, I can only consider the procedure for how the Council made the orders and it is unlikely I could find fault in that respect.
25. It is also unlikely I could find any fault caused a significant injustice to Mr B. Mr B says the works have made the road less safe for him to cross. However, he is not personally affected by any restrictions on waiting and loading, which are the only basis for requiring a public inquiry.

Complaint Response

26. It is clear there were some delays in the Council responding to Mr B’s correspondence. For example, the Council did not respond between January and April 2019, despite indicating it would do so. It also delayed in sending a final response. However, this was largely due to disagreements about the terms of complaint.
27. The delays did not cause a significant injustice to Mr B as he had the right to appeal to the high court about the substantive part of his complaint. The Council gave full and accurate responses to his concerns at each stage.

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Final decision

28. The Council is at fault for delays in its responses, but this did not cause a significant injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman