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Gateshead Metropolitan Borough Council (20 003 116)

Category : Transport and highways > Other

Decision : Not upheld

Decision date : 19 Feb 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to refuse his request for H-bar or keep clear markings on the road in front of his driveway. The Ombudsman found no fault in the Council’s decision making. It was entitled reach the decision it made.

The complaint

  1. Mr X complained about the Council’s decision to refuse his request for H-bar or keep clear markings to be painted on the road in front of his driveway after access was regularly blocked by parked vehicles. He said the Council had no policy setting out its decision-making criteria and its decision was unfair.
  2. Mr X has suffered distress and frustration as his driveway continues to be blocked.

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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. 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. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainants.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Traffic Signs Manual 2018 (chapter 5)
    • The Road Traffic Regulation Act 1984 (section 122)
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. The Council can provide white ‘H bar’ road markings at dropped kerbs to help prevent vehicles blocking private driveways.
  2. The purpose of the markings is to alert drivers to the fact there is a private access point which must be clear.
  3. The markings are not legally enforceable but are nationally recognised and may help to discourage inconsiderate parking.
  4. Keep clear markings may be used to show areas of the carriageway that should be kept clear of stationary vehicles. Keep clear road markings are advisory only.

What happened

  1. Mr X telephoned the Council in September 2019. He asked for help with problems accessing his driveway because of inconsiderate parking from other residents.
  2. Officer A, an Engineering Service Manager, emailed Mr X on 17 September with an image of his street. Officer A asked Mr X to confirm this was the correct location. Mr X confirmed the location was correct.
  3. On 18 September, officer A told Mr X the Council would investigate. Mr X asked the Council to tell him before it carried out a site visit so that he could be present.
  4. Officer A emailed Mr X on 23 September to say a site visit had been completed before he had the chance to tell Mr X. Officer A confirmed the Council would not install any road markings because Mr X’s driveway was not hidden and there are two driveways next to each other.
  5. Mr X emailed Officer A on 17 October asking for a telephone conversation. He said he discussed the issue with another officer but still had questions. Officer A told Mr X he was out of the office and asked Mr X to send queries by email.
  6. Mr X emailed Officer A again on 8 November. He said he was still waiting for a telephone call to discuss outstanding questions.
  7. Officer B, a Network Manager Team Leader, contacted Mr X on 11 November. Mr X said he sent further questions to Officer A by email on 17 October and had no reply. Officer B explained Officer A did not receive Mr X’s email and asked him to resend it.
  8. Mr X’s email from 17 October asked the Council for a copy of any relevant legislation, rules, or procedures. He asked how the Council reached its decision and why he could not pay to paint the markings himself.
  9. Officer A discussed the issues with Mr X again. Mr X remained unhappy with the Council’s decision, so Officer A gave him details of the Council’s complaints procedure on 12 November.
  10. Mr X’s local councillor emailed Officer A on 16 November to ask for a site meeting. They also raised an issue about the impact the blocked road could have on the emergency services.
  11. The Council liaised with the Fire Service on 9 December. The Fire Service confirmed it had powers to break into and move vehicles causing an obstruction in an emergency.
  12. Officer C, an Engineer, met Mr X on site to discuss the parking issues on 18 December. Mr X requested the Council install H-bar road markings. Officer C could clearly see Mr X’s driveway and considered it was not inconspicuous. Officer C told Mr X about the response from the Fire Service.
  13. On 10 January 2020, Mrs X told the Council she was dealing with the matter going forwards instead of Mr X. The Council told Mrs X it did not have a policy, but it is the Council’s stance that H bars are not needed if the driveway can be clearly seen from the highway. The Council investigated but would not install H-bar markings as Mrs X’s driveway can be clearly seen from the highway. It said it could not assist further with parking issues and Mrs X should contact the police if the problem continues.
  14. Mrs X made a complaint to the Council on 13 January. She said:
    • They experienced ongoing problems with access to their drive. Neighbours, visitors, and delivery drivers use the entrance to their drive as a parking space.
    • Mr X contacted various Council officers asking for lines or keep clear to be painted on the road. They have done nothing to help the situation. After 4 months, they offered to send a letter to neighbours.
    • The Council failed to provide any guidelines or procedures of how they assess who is entitled to road markings.
    • The Council cannot say Mr and Mrs X do not meet the criteria yet also say there is no written procedure or guidance.
    • An officer was meant to attend a meeting with Mr X and their local councillor. The officer was over an hour late so the local councillor had to leave.
    • An officer told her the road markings have no legal authority, so the Council no longer uses them. However, the Council does provide the markings for concealed drives so they must have a benefit.
  15. Mrs X emailed the Council on 22 January. She asked if the Council would paint ‘keep clear’ at the access to her drive.
  16. The Council wrote to residents on Mr and Mrs X’s street on 29 January. It explained the problems with obstruction and inconsiderate parking. It warned residents it may consider permanent parking restrictions if the problems continued.
  17. The Council refused Mrs X request for keep clear markings on 31 January. It said keep clear markings were typically used in live traffic and not to resolve parking issues.
  18. Mrs X sent several emails to the Council in February, explaining that the Council’s letter to residents had not worked. She provided images of parking obstructions outside her home.
  19. The Council sent its complaint response on 9 March. It said:
    • It reviewed emails exchanged and was confident officers did not intend to give misleading or contradictory information. It said technical matters can be confusing, but it had seen nothing to suggest it gave inconsistent or unclear information.
    • The fact there is no written policy reflects the simplicity of the Council’s approach.
    • The officer involved apologised for being late to their meeting.
    • It acknowledged the limitations of the letter it sent to residents, which is why this was not done earlier. The intention was to give the impression further action was likely, but it is unlikely the Council will introduce permanent parking restrictions.
    • The officers involved acted consistently. While the refusal to paint road markings may be upsetting, it is not an unreasonable judgement.
  20. Mrs X was unhappy with the Council’s complaint response and asked for it to be considered by the Chief Executive. She said:
    • Officers showed a lack of will to help or offer solutions.
    • There is a lack of transparency about which applications will meet the criteria as the Council has no written procedure.
    • Everything was made up as the Council went along.
    • The complaint response is contradictory, as it says these matters can be confusing but then says the procedure is so simple it does not need to be written down.
    • The complaint was not handled in accordance with policy and Mrs X had to chase up a response.
  21. The Council’s final complaint response was sent to Mrs X on 7 May. It said officers told Mrs X the complaint response would be delayed and apologised for this. It said only the police have the power to deal with highway obstruction offences. The Council does not normally issue penalty charge notices to vehicles parked along dropped kerbs, because it is impossible to tell whether a vehicle is parked by, or with the permission of, someone living at the property.
  22. The Council stood by its decision, which it said was assessed by qualified and experienced officers in accordance with the Council’s protocol to only place non enforceable markings in a location where a driveway is not obvious to road users. It said there are no statutory regulations which cover this. Regarding Mrs X’s complaint that other roads on the same housing estate did have markings, the Council said each request is considered and decided on its own merits and protocols in place at the time.
  23. Mr and Mrs X remained dissatisfied with the Council’s response and lack of action. Mr X brought the complaint to the Ombudsman on 10 August 2020.

Response to my enquiries

  1. At the time of Mr X’s request, the Council did not have a policy relating to H bar or keep clear markings. It is the Council’s stance that they are not required if the driveway is apparent to other road users.
  2. The Council told me it investigated by visiting the site. It declined Mr X’s request because his drive was apparent to other road users.
  3. The criteria of ‘apparent to other road users’ is a decision for officers.
  4. Due to the issues raised by Mr X’s complaint, the Council has now produced a protocol which all requests are assessed against.

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Analysis

  1. At the time of Mr X’s request for H bar or keep clear road markings, the Council did not have a written policy or procedure. Instead, it was established working practice for officers to make a decision based on whether they considered an applicant’s driveway was clearly visible to other road users.
  2. I have seen the emails between Mr and Mrs X and the Council, and a local councillor, so I am able to understand the Council’s decision. I am satisfied its decision was taken using a consistent approach which officers were aware of. More than one officer visited and assessed the site, and they reached the same conclusion. The decision-making criteria is not written down but was confirmed to Mr and Mrs X on more than one occasion. While I appreciate Mr X disagrees, I cannot question the merits of the decision and I do not consider there is any basis on which to challenge the views of the officers involved.
  3. There are no statutory regulations which apply to unenforceable road markings. The Council was therefore not under a duty to have a written policy or procedure. However, I agree with Mr X that this raised questions about consistency of decision making. The Council recognised this and, because of Mr X’s complaint, has produced a written procedure to refer to.
  4. If the Council made the decision again under its new procedure, I have seen no evidence to suggest the outcome would be different.
  5. It is not the Ombudsman’s role to tell the Council when it should introduce parking measures or install road markings. Our role is to decide whether the Council properly considered the request. On the evidence seen, I am satisfied the Council did consider Mr X’s request properly.

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Final decision

  1. I have completed my investigation. I found no fault in the Council’s decision making. It was entitled reach the decision it made.

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Investigator's decision on behalf of the Ombudsman

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