Decision : Not upheld
Decision date : 10 Nov 2021
The Ombudsman's final decision:
Summary: the complainant, Mr X, complained the Council failed to properly consult with HGV drivers and consider the likely impact on them of parking controls imposed under an Experimental Traffic Regulation Order. The Council said it followed the correct procedure, gained the necessary approval from the Secretary of State for Transport, and remedied a case where a penalty charge notice had been issued in error. We found the Council acted without fault.
- The complainant, I shall refer to as Mr X, represents a group of HGV drivers. Mr X complained the Council failed to properly consider the impact on and concerns of HGV drivers when it introduced an Experimental Traffic Regulation Order (the Order) in January 2021. This created parking controls limiting the use of lay-bys and other associated parking areas. Mr X says this led to a lack of approved parking areas resulting in drivers receiving fines.
- Mr X wanted the Council to revoke the Order and return to the parking controls previously in place in 2020. The Order expired in June 2021.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If 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)
- 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
How I considered this complaint
- In considering this complaint I have:
- Contacted Mr X and read the information he presented with his complaint;
- Put enquiries to the Council and reviewed its responses;
- Researched the relevant law, guidance, and policy.
What I found
- The Road Traffic Act 1984 grants powers to councils to make a Traffic Regulation Order both experimental and permanent. The Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 set out the procedure for creating an Order.
- Under Regulation 22 councils may make Experimental Traffic Regulation Orders (ETRO). Regulations 7 and 8 (imposing publicity and consultation duties) do not apply to ETROs. Under Regulation 6 councils should liaise with representative bodies as necessary. Regulation 18 imposes a duty on councils to ensure proper signage is in place before an order comes into force and to preserve them.
- Anyone may challenge the validity of an order in the courts under the RTA 1984. (Paragraphs 35 and 36, Part VI Schedule 9, Road Traffic Act 1984)
- As part of the preparations for the UK leaving the EU, the Council discussed with the Department for Transport (DfT) parking and traffic controls for HGVs. In December 2020 the Parliamentary Undersecretary of State for Transport gave permission to the Council to make an Experimental Traffic Regulation Order (ETRO). This extended the controls in place in one district of the county to other districts. The Council received permission to increase the first offence release from clamping fee to £150. In line with Regulation 6 the Council met in partnership with the DfT, the Road Haulage Association and Logistics UK as representative bodies of HGV drivers.
- The Council made the ETRO (Order) on 23 December 2020. It came into force on 3 January 2021 ending on 3 July 2021. The Order banned HGVs from waiting in any road in several boroughs and districts in the county. HGVs could park in named laybys so drivers could take their short statutory breaks. The Council placed the Order and Statement of Reasons explaining the Council’s reasons for the limits on HGV parking in its offices for public consultation and online. The Council says when the Order expired on 30 June 2021 parking controls reverted to those in place in 2020.
- In the letter to the Council the Parliamentary Under Secretary of State for Transport said:
“…I take note of the undertaking you give…that a targeted approach will be adopted to enforcement focusing on parking in locations where there is a material impact on local residents or businesses or on the road network”.
- The Council opened the public consultation with publicity given to making the Order. The consultation period continued until the Order ended. This enabled the public including HGV drivers to comment on the Order’s impact. The information will help the Council decide on future controls it may decide it needs to impose on the road network. During the consultation period the Council received 474 objections and 147 messages of support. The Council continues to evaluate the responses and hopes to complete that work by the end of 2021. The Council will then share the information and its review with the DfT. The Council says the public consultation allowed anyone to comment on the Order’s impact. That includes Mr X and the HGV drivers he represents.
- In response to my enquiries the Council says that between 4 and 11 January 2021 it undertook ‘soft’ enforcement. It did not exercise its power to clamp and charge HGVs for release from clamping on a first offence. Instead, it gave leaflets to drivers. It handed out warning letters about the new parking controls and the penalties for any contraventions.
- Mr X says the Council failed to explain to him or those he represents why it introduced the Order. It also failed to prevent clamping on a private industrial estate not covered by the Order. The Council says using an Order means the consultation period runs alongside the live Order. It investigated claims clamping had wrongly taken place and remedied that. Anyone who receives a penalty notice or clamping under the Order has the usual rights of appeal.
- In commenting on my draft decision Mr X says the Order resulted in inadequate parking provision. Mr X also says the Council did not properly consult or consider the likely impact on HGV drivers. Instead, Mr X believes the Council acted in reaction to a campaign by local politicians opposed to the number of HGV vehicles passing through and parking within the county.
Analysis – was there fault leading to injustice?
- My role is to decide if the Council exercised its powers to create the Order without fault by following the correct statutory procedure and having before it all relevant information. If I find fault I must decide if it has caused an injustice. Where someone has an alternative right of appeal, I may not judge the matter.
- The Council told the RHA and Logistics UK of its proposal to introduce the Order. It gained the Secretary of State’s approval and published the Order. It introduced signage as set out in road signage regulations. Mr X queried the site used for road signage about the parking controls. Mr X believes the Council could have done more to help HGV drivers to comply with the Order. The Council may consider those concerns when deciding on whether to introduce more permanent controls in future. The purpose of the Order is to see what impact the controls have and decide whether to introduce them permanently or design different controls. I find the Council followed the correct statutory procedure and therefore I cannot challenge its decision to issue the Order.
- Anyone who receives a penalty charge notice or has their vehicle clamped may appeal. That right of appeal means I cannot investigate the individual application of the Order.
- Clearly many in the HGV community want to know if the Council with DfT approval intends to introduce similar more permanent controls. It is still evaluating the responses to the public consultation. I note many responses opposed the Order. If the Council decides to issue a permanent TRO it must do so following the consultation and publicity the law imposes for making such an order. It will need to conduct the statutory public consultation before introducing an order unlike with an ETRO.
- The limits imposed under the Order impacted on the working conditions of the HGV drivers. The Council told HGV representative bodies about the Order and offered a further meeting which those bodies declined. The Council conducted a public consultation and is working on the results. I find the Council followed the correct procedure, and therefore it acted without fault.
- I find the Council acted without fault in exercising its power to make an ETRO.
Investigator's decision on behalf of the Ombudsman