Middlesbrough Borough Council (18 012 853)

Category : Transport and highways > Highway repair and maintenance

Decision : Not upheld

Decision date : 04 Mar 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complain about the way the Council consulted on and approved a road widening scheme to reduce traffic congestion on the road where they live. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

  1. The complainants whom I shall refer to as Mr and Mrs X complain about the way the Council consulted on and approved a road widening scheme to reduce traffic congestion which will affect their property.
  2. In particular Mr and Mrs X complain the Council;
    • Delayed in responding to their Freedom of Information request.
    • Failed to follow proper procedure when consulting with residents and took no regard of the representations received about the proposal and alternative suggestions put forward. And failed to take account of residents’ requests for the Council to place the scheme on hold until it completed a Joint Strategic Transport Needs Assessment (JSTNA) due in 2019.
    • Failed to make Environmental reports available on the proposal. And failed to include relevant background reports in the Executive Committee report on the proposal.
    • Gave out misleading information about collaborative working with other Councils and highways agencies on the proposal. And failed to include relevant information from highway consultants on the viability of the scheme.
    • Failed to respond satisfactorily to their complaints about the matter and instead grouped the responses received from residents into nine key issues in the Executive report.
    • And a councillor failed to respond adequately to their question put to a full Council meeting about the road proposal.

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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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
  3. 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. I have read the papers submitted by Mr and Mrs X and spoken to Mr X about the complaint. I considered the Council’s documents about the planning application available on its web site and the Council’s responses to Mr and Mrs X’s complaints. I have explained my draft decision to Mr and Mrs X and the Council and considered the comments received.

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What I found

  1. The Council’s Executive Committee considered a report on a highway improvement scheme for the road Mr and Mrs X live on. The report asked members to note the result of a public consultation exercise and approve the Council implementing the scheme. The report explained the proposal to improve the flow of traffic on the road and others nearby to reduce delays and improve journey times.
  2. The report explained the background to the scheme and there had been studies from highway consultants with other local councils in the area to look at potential options to improve traffic flows. The report explained this resulted in a package of prioritised highway improvements including the one on Mr and Mrs X’s road. The report outlined a JSTNA commissioned by the Council and other local authorities to carry out a strategic assessment of future transport needs. But this was a long-term assessment and would complement the scheme already proposed.
  3. The report said there was no statutory need to carry out consultation but the Council decided to do so due to the potential impact on seven properties next to the road. And on key transport stakeholders during construction and in the longer term. So, the Council carried out a two-phase consultation exercise. The first phase was formal consultation with the seven property owners (including Mr and Mrs X) with direct frontage onto the road due to being most directly affected. This coincided with the Council advertising the launch of a package of highway improvements across the borough. Officers also consulted with the local ward councillors, parish councils, the Police, emergency services and bus operators.
  4. The officers attended meetings of local community councils to explain the proposals and senior Councillors attended parish council meetings. From this the Council decided to carry out a wider consultation exercise to include more properties and extend the response time. So, the Council sent out more consultation letters to properties near the scheme and allowed consultees three months to respond. The senior councillors also attended further meetings of the parish councils.
  5. The Executive report outlined the consultation responses received and grouped these into nine key issues. These included concerns about congestion and traffic growth, environmental impact, lack of justification of the scheme and the method used to develop the scheme. The concerns also said the Council failed to look at alternatives and the scheme should wait until the result of the JSTNA.
  6. The report responded to the concerns raised and explained why the Council wished to go ahead with the proposal to help reduce congestion. The Council considered it justified as a key part of a wider package of highway improvements. It had been developed using a traffic modelling exercise. The report noted suggested alternative schemes put forward during consultation. But explained the proposal developed during the traffic modelling would mitigate the impact of future traffic growth and ensure individual highway improvements could be delivered. The report noted some schemes put forward had merit but it need to consider issues such as cost and land ownership to ensure it could deliver the scheme.
  7. The report noted some consultees wanted the Council to wait for the result of the JSTNA. And explained why the Council wished to go ahead now with the scheme as it would complement the proposals in the JSTNA.
  8. The report referred to concerns about the impact on the environment due to noise, vibration and air quality. The report explained the Council commissioned consultants to carry out a detailed assessment of the predicted impact of the scheme onto these environmental factors. But the assessments did not show any significant environmental issues.
  9. The report explained the Council needed to take decisive action to address congestion on the road and mitigate predicted traffic growth. The report noted the scheme would have a minor adverse impact on the occupiers of properties directly next to the section of road affected by the scheme. But it needed to balance this against the wider benefits it would deliver to road users.
  10. The report referred to attached appendices about the scheme and listed background papers. The Executive Committee considered and approved the proposed scheme.
  11. Mr X made an FOI request to the Council for information on the proposal. Mr X is pursuing a complaint about the Council’s handling of his FOI request with the Information Commissioner.
  12. Mr X submitted a question to the full Council about the proposed road scheme and putting it on hold until after the JSTNA was published. After the Council meeting Mr X made a Standards complaint to the Council’s Monitoring Officer. Mr X alleged a councillor breached the Members’ Code of Conduct as he failed to answer Mr X’s question and misled those present at the meeting with his response.

Standards Investigation

  1. The Council carried out a Standards investigation into Mr X’s complaint about the councillor’s response to his question. As part of the investigation the Council appointed an Independent Investigator to look at the complaint.
  2. The Monitoring Officer and Independent Investigator concluded that while the councillor did not answer Mr X’s question in explicit terms his answer was clear. And referred to an addendum report to the main report which recommended the proposed works should have high priority. Due to this the Monitoring Officer and Independent Investigator considered the councillor gave an answer to Mr X’s question although not in the format Mr X wanted. So, decided to take no further action on the complaint.

The Council’s response to Mr X’s complaints

  1. The Council explained that due to the number of responses received to the public consultation it was not practical to respond to every detail in the Executive report or respond to each consultee. But it summarised the nine key issues raised in the report with an officer response to each one.
  2. The Council says the road improvement scheme forms part of a wider package of highway improvement schemes. It says the scheme was developed over four years following traffic modelling exercises and it looked at several other options during that time. The Council considers removing the road improvement scheme on Mr X’s road will have a major impact on the overall effectiveness as it is a fundamental part of the Council’s highway strategy. It says it did consider some of the small improvement suggestions put forward by residents and accommodated some in the design procedure. But the Council considered most suggestions would not have delivered the predicted benefits of the proposed road scheme within the available budget.
  3. The Council says the road scheme is not classed as a major route although it is referred to in the JSTNA. But it does not form a material consideration in the review. The Council considers it a complementary scheme to improve traffic flows on the local highway network. So, does not consider it necessary to delay carrying out the scheme until completion of the JSTNA.
  4. The Council said there was no aim to withhold environmental reports and it intends to publish final versions of the reports on its website.
  5. The Council explained the reference to other Councils and highway agencies in its documents referred to the roles played by these bodies during the time when it was developing the package of highway improvements. It says the highway agency referred to was a statutory consultee during the preparations of its Local Housing Plan.

My assessment

  1. Mr X has raised concerns about the Council’s response to his FOI request and pursued a complaint to the Information Commissioner. As paragraph four explains any concerns about FOI requests are a matter for the Information Commissioner to consider. So, Mr X needs to continue to pursue his complaint with the Information Commissioner.
  2. The documents provided by Mr and Mrs X and those on its web site show the Council consulted with them and other residents. So, Mr and Mrs X could send in their comments. While Mr and Mrs X wished for an individual response to their comments it is for the Council to determine how it wishes to respond to the replies it received. The highways report on the proposed road scheme included comments made by Mr and Mrs X and other residents with an assessment of the proposal. So, it is clear the Council has considered the representations it received and responded to them.
  3. Mr and Mrs X do not agree with the Council’s decision to approve the application. But I have seen nothing in the evidence I have considered to show the Council was not aware of all the relevant facts, including their objections to the proposal when it made its decision. So, there are no grounds for the Ombudsman to criticise the merits of the Council’s decision to approve the proposed road scheme. And no evidence of administrative fault.
  4. Ultimately it is for the Council to decide what information it includes in the Executive report and its views on the information received from its consultants. Comments from the consultation referred to concerns about the methodology used. So was open to Councillors to question the information available if they considered it necessary. This will include looking at any background papers referred to in the report.
  5. The Council documents do provide evidence to show that it has been collaborating with other Councils and highways agencies over the proposed road scheme and wider proposals. So, I do not consider the Council’s comments about collaborative working are misleading.
  6. The documents I have seen about the Standards Investigation show the Council appointed an Independent Investigator to consider the matter. Mr and Mrs X’s views and comments were considered during the investigation. The Council decided the councillor had responded to Mr X’s question. This is decision the Council is entitled to make. As the Standards Investigation has been thorough I do not consider there are grounds to reinvestigate the complaint. And it is unlikely that any further investigation by the Ombudsman will achieve a different outcome.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault by the Council in the way it considered the response to consultation. The decision to approve a road scheme near to Mr and Mrs X’s property is not one the Ombudsman can question even though Mr and Mrs X disagree with it.

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Investigator's decision on behalf of the Ombudsman

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