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Essex County Council (16 002 284)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 10 Mar 2017

The Ombudsman's final decision:

Summary: The complaint is about the Council’s construction of a shared cycle/pedestrian path on the road where the complainant lives. The complainant says the Council did not build the path to design guidance recommendations, did not properly consult and breached its equalities duties. I have partially upheld the complaint and agreed a remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr H, complains about a shared cycle/pedestrian path the Council has built on the road he lives on, which I shall refer to as Road J. He says he and the town’s Cycling Campaign have concerns over:
    • the rationale and imposition of the scheme;
    • the only token engagement of stakeholders, such as the Cycling Campaign;
    • the path’s design, including its unsuitability for utility cyclists;
    • the increased potential for serious injuries;
    • the waste of public resources available for cycling infrastructure schemes.
  2. Specifically Mr H complains the Council, in its design of the scheme, did not consider several documents including:
    • Department of Transport Local Transport Notes 1/12 and 2/08;
    • the Council’s Cycling Strategy;
    • the Council’s Cycling Design Guide;
    • the Council’s own safety audit which made several recommendations.
  3. Mr H also notes the Council says the Local Sustainable Transport programme’s Equality Impact Assessment covers the scheme. But he cites a response from the Council’s legal advisors which says:

“In the highways context this [the Equality Act] can be discharged by a high level equality impact assessment on a programme and a detailed safety design which ensures that any redesigned highway is safe to use for all users.”

“I understand that shared cycle facilities are to be constructed to standards identified within the ECC Cycle Strategy, ECC Cycle Design Guide, LTN 1/12 and Sustrans guidance to ensure that the facility can be shared safely with other users. If the scheme meets safety standards then it would not be likely to have a disproportionate adverse impact on highway users with one or more protected characteristics.”

  1. Mr H says the fact the Council designed a scheme that does not follow the cited guidance, means the Council has not shown the scheme is safe for all users.

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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’. 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)
  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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr H;
    • made enquiries of the Council and considered its response;
    • spoken to Mr H;
    • visited the Council, inspected its files and interviewed its officers.
  2. I have sent my draft decision to Mr H and the Council and considered their responses.

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What I found

  1. To convert a pavement/footpath, running alongside a road, to a shared use path, a council must remove the part of the 1980 Highways Act that restricts the footpath’s use to only pedestrians. It then needs to build the shared track. The Highways Act does not place any statutory undertaking on councils to carry out consultation on these measures.

The Public Sector Equality Duty

  1. The Equality Act says when councils are carrying out their functions, they need to consider the following duties towards several groups of people, including people with a disability:
  • to eliminate unlawful discrimination;
  • to advance equality of opportunity;
  • to foster or encourage good relations.
  1. This is called the Public Sector Equality Duty. The courts decide if a public authority has done enough to comply with the duty.

The Council’s Travel Strategy for the part of the town road J is in

  1. The Travel Strategy notes the cycling schemes for the area have:

“...specifically targeted the separation of cyclists from normal traffic as there is a perception that cycling can be dangerous. By ensuring that cycle ways are, as far as possible, kept off-road (or at least have clearly designated space) and are relatively direct, cycling should become more attractive as these measures will help address the perception of danger... These include...a new potential combined pedestrian footpath / cycleway along [Road J]”.

  1. The Council’s Officer has explained to me that its own consultation has shown the public have a perception that cycling can be dangerous.

Department of Transport Local Transport Note 1/12 Shared Use Routes for Pedestrians and Cyclists

  1. This national guidance on shared use routes advises:

“Shared use routes created through the conversion of footways or footpaths can be controversial. There are many such examples that have been implemented inappropriately and/or poorly designed, particularly in urban areas. It is essential for designers to understand that shared use is not the ‘easy fix’ it might appear to be.”

The note “...expresses a general preference for on-carriageway provision for cyclists over shared use. However, it is not meant to discourage shared use where it is appropriate.”

“Disabled people and older people can be particularly affected by shared use routes. Ultimately, however, it will depend on the quality of the design.”

“The road network is the most basic and important cycling facility available. In general, cyclists need only be removed from the road where there is an overriding safety requirement that cannot be met by on-carriageway improvements, or where providing an off-carriageway cycle route is an end in its own right.”

The Essex Cycling Design Guide

  1. When giving guidance on planning new routes, the Guide stresses the importance of assessing existing cycling conditions before deciding on suitable measures and says: “Even if these procedures are not fully adopted, it will be important to address the issues that the guidelines raise.” It adds: “Early consultation with local cyclists is recommended wherever possible.”
  2. The Guide also says: “[r]ecent Department for Transport guidance has emphasised that shared use should only be used if there is no alternative.”

The Council’s Cycling Strategy

  1. At the time of the complaint, the Council’s Cycling Strategy advised:

“… only introduce joint cycleway/footway facilities after all other options have been evaluated and rejected.”

“Cycle route design [should] avoid problem junctions and the proximity to private drives.”

  1. Since then the Council has published a new Cycling Strategy. The new Strategy says:

“We are committed to ensuring that the cycling infrastructure we design looks attractive, serves its purpose and encourages more people to cycle. In order to facilitate this we will:

    • Create/refresh a specific Essex Cycling Design Guide that incorporates national best practice and provides a ‘tool kit’ for cycle route assessment and design.
    • Train our Highway Engineers, Planners and Safety Auditors in cycle friendly design.
    • Create a support network of experienced cycle infrastructure experts to help/challenge designers of new schemes.
    • Fund study trips for designers, planners and members to see examples of good cycling design practice first hand in other UK towns and cities, such as Cambridge, London or Brighton.
    • Require all cycling infrastructure designers to cycle the route of their proposed measures to ensure that they understand the issues on the ground.
    • Develop a simple and proportionate Non-Motorised User Audit methodology for all Essex infrastructure schemes.
    • Appoint a cycling design reviewer to ensure all cycle infrastructure designs are of appropriate/consistent standard.
    • Hold an annual Essex Cycling Design Forum to assess the effectiveness of existing and new cycling infrastructure, engage with local stakeholders and share best practice across the county.

Our focus on ‘Best Practice’ design will raise the quality of the cycle measures we implement and ensure that they are understandable and appropriate. This will encourage more people to cycle, as physical barriers to cycling are reduced.”

  1. The Cycling Strategy also says the Council will provide “coherent cycle networks” that connect key attractions and that cater for all users and abilities. It says the networks will use a combination of on-carriageway and off-carriageway facilities.

What happened

  1. Road J runs out from the centre of the town where Mr H lives. He cycles and is a member of the local Cycling Campaign.
  2. In 2014 the Council secured some funding for a Local Sustainable Transport Fund (LSTF). The stated purpose of the scheme was:
    • to improve walking and cycling in Road J’s part of the town and provide links to the train station and town centre;
    • to allow cycle route improvements.
  3. The October 2014 business case for the LSTF notes that one of the scheme’s packages was a widening of the footways on Road J which was a key connector for pedestrian use for planned housing developments. The Council says it first identified the cycleway improvements in the town’s Travel Strategy document. The Strategy noted:

“The proposed cycleway improvements close-up gaps in the existing cycle network between key attractors, neighbourhood centres, existing developments, and future developments. The improvements will build on the success of…[a past cycling programme]… which significantly increased the number of bicycle users within the town.”

  1. In October 2014 the Council’s highways partners (Organisation K) appointed an officer to design the cycleway. He noted the scheme by then had a concept design.
  2. By May 2015 Organisation K had drawn up a preliminary design and commissioned and received a first safety audit. Organisation K asked the Council what it wanted to do about consultation. It noted the nature of the scheme did not need formal consultation. The Council advised it wanted informal consultation only. The Council’s Officer explained to me the timescales imposed for implementation of the scheme were tight because of constraints imposed by the funders. So the Council has not been able to involve stakeholders, such as the Cycling Campaign, as much as it did before, although it was engaging with the Campaign.
  3. The Council says it sent out consultation letters in July. In August the Council began its detailed design of the scheme. In October 2015 the Council held an information event about the scheme. As a result of the responses it received, the Council changed the design of the scheme, so it was continuously to one side of the road, rather than changing sides, as in the original proposals.
  4. In January 2016 the Council responded to a Freedom of Information request. The response advised:
  • “The concept is to provide a shared facility which is used by cyclists (ranging from young to old), pedestrians (various ages, including visually impaired, physically impaired), mobility scooters and vehicles at vehicle crossings. With this multitude of users, it is expected that reasonable behaviour and due care and attention will make this a suitable facility. Most of the above users use the footway now. The facility will have features which will naturally check the speed of cyclists: these include road signs, trees, lighting columns, bus stops and deviation of route at side roads.”
  • it did not discount any other schemes in favour of the planned shared footway/cycleway scheme.
  1. In November 2015 the Council’s Road Safety Audit Team conducted a detailed road safety audit. The March 2016 report of that audit noted:
    • various issues with parked vehicles encroaching onto the path;
    • potential speed issues, as part of the path is on a hill;
    • potential conflict points/possibility of collision between cyclists and cars using the existing private drives along the route. It recommended the Council explore whether there were opportunities to place the cyclepath on the road;
    • problems with the slope of the path;
    • removal of a pedestrian refuge from the road;
    • the width of the path at one point.
  1. The designers’ response to the road safety audit’s recommendations said its view was the risk of collision was low. It advised:

“...[o]n carriageway cycle lanes has been considered but 1. They have their own problems in design and practice and 2. The objective of the scheme is to provide for all levels of cyclist including the young, so the cycleway/footway as designed is considered appropriate.”

  1. The Audit Team’s view was that, although it accepted the low risk, it noted the number of vehicle crossings on the route was high. It considered the issue unresolved. There were also other issues it had raised that in its view remained unresolved.
  2. As part of my enquires, I asked for the Council’s (or its contractor’s) record of the consideration of alternatives, before deciding on a shared use path. It has not been able to provide any record.
  3. In April Mr H complained. The Council provided a response and then directed Mr H to the Ombudsman.
  4. The cycleway opened in August.
  5. In September the Council’s Audit Team carried out a third stage safety audit. With the path crossing the driveways its view was the problem was unresolved, because of the continued increased risk of conflict.
  6. Mr H complained to the Council and then to the Ombudsman. The Council’s complaint responses advised Mr H the relevant team was “…confident that the scheme is being delivered in accordance with the requirements that the funding was secured through.”

Was there fault by the Council?

The Public Sector Equality Duty

  1. Where a complaint can be resolved by going to court, the Ombudsman cannot investigate it unless it is unreasonable to expect a complainant to take court action.
  2. It is my view that it is not appropriate for the Ombudsman to investigate this part of the complaint. Decisions on whether the Council breached the Public Sector Equality Duty would involve deciding on contested questions of fact and law. This needs the more rigorous and structured procedures of civil litigation for their proper determination. Given this, I can see no reasons it would be unreasonable for Mr H or the Cycling Campaign to use the alternative court remedy available.
  3. I also do not see how this part of the complaint has caused Mr H a personal injustice significant enough to warrant further investigation by the Ombudsman.

The scheme’s design

  1. The Council says that:
    • the timescales imposed for implementation of the scheme were tight because of constraints imposed by the funders;
    • it intended use of the scheme by cyclists of all levels of ability, including the young.
  2. The Council’s Travel Strategy document for the area says it will aim for off-road provision. Shared use paths are one form of off-road route. National and local guidance recognises there are times when there may be reasons why a shared footpath design may be the most suitable, for example when the path is designed for less confident uses. It also recognises they can be an aim in their own right, as the Council’s Travel Strategy says is the case here. So I cannot criticise the Council for its aim to build such schemes.
  3. But local and national cycling design guidance recommends decisions on implementing shared use schemes are only take after consideration of alternatives, because of safety and utility issues which are often found with shared use paths. The Council’s own Cycling Strategy (current when the Council designed and built the route) also made the same recommendation. It seems to me there was a conflict between, on the one hand, national and local cycling guidance and strategy and, on the other, the Council’s strategic approach for the area. The Council has partially resolved that conflict by introducing a new Cycling Strategy. But there remains potential conflict between the Council’s strategic aims and the local and national design guidance.
  4. The Council’s response to the road safety audit says it had considered on-road alternatives. But it has not been able to provide me any record of this. I also note its response to a Freedom of Information request advised it had not considered any alternatives. My view is, on the balance of probabilities, there was no detailed consideration of an on-road alternative. To not do so was fault. And by not considering alternatives, the Council missed the opportunity to fully consider and address some of the safety issues that were later identified by the road safety audit.

Consultation

  1. The legislation the route was constructed within places no statutory consultation duty on the Council. So local Guidance to consult “wherever possible” informed its decision on consultation. With the Road J proposals, the Council has explained the tight timescales and why this meant it kept consultation to the detailed design stage. It notes it did make changes because of its consultation. While I sympathise with the Cycling Campaign’s view that consultation would have been best practice, I cannot conclude that not doing so amounts to administrative fault.

Did the fault cause an injustice?

  1. In the absence of the faults identified above, it is still possible the current scheme would have gone ahead. I need to consider what personal injustice has been caused to Mr H, who uses the road as a cyclist and a pedestrian. He also has a campaigning interest. I consider the main injustice he has been caused is the uncertainty about what might have happened but for the fault.

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Agreed action

  1. The Council aims to update and review its Cycling Design Guide. It has agreed that the review will consider how to achieve its objective of more off-carriageway cycling provision that complies with national guidance:
    • for limited use of shared use paths;
    • to first consider alternative options.
  2. As a remedy to Mr H, the Council has also agreed to provide him with an update after it has carried out this review.

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Final decision

  1. I have partly upheld the complaint and agreed a remedy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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