Medway Council (19 001 400)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 24 Dec 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council failed to follow due process in relation to a consultation for a traffic management scheme. Mr B says the Council agreed the scheme but then unreasonably decided not to proceed which will mean residents will continue to suffer daily traffic problems. The Ombudsman has found the Council at fault due to delay and poor communication but considers the agreed actions of an apology and review of procedure are enough to provide a suitable remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complains on behalf of residents the Council failed to follow due process in relation to a consultation for a traffic management scheme. Mr B says although the Council decided to carry out the proposed scheme after the outcome of the consultation it later decided not to continue based on representations received outside the consultation period and gave undue weight to a local business over the safety of residents. Mr B also says the Council failed to provide proper reasons for its later decision and has sought to rely on information from a flawed speed survey completed after making the decision.
  2. Mr B says because of the Council’s fault residents will continue to suffer daily traffic problems and intimidation from speeding motorists using the lane as a short cut as the existing traffic calming measures are inadequate.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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 read the papers provided by Mr B and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr B. I have explained my draft decision to Mr B and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

  1. A Traffic Regulation Order (TRO) is the legal document required to support a range of measures, which govern or restrict the use of public roads. The principle legislation is the Road Traffic Regulation Act 1984. The procedures for creating a TRO are set out in the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996.
  2. An experimental order can be made without the need to advertise the proposal or consider objections. However, the procedure for making an experimental order permanent is similar to that for making a permanent TRO.
  3. Councils will usually carry out some consultation in the area before deciding whether to go through the formal process of making a TRO. However, unless a council specifically indicates otherwise, consultation is not a referendum. The decision to make a TRO ultimately rests with the council and the Ombudsman when investigating a complaint about initial consultation must consider if there was fault in how it was made.

Key events

  1. The Council says the traffic management scheme arose following representations from residents over a long period of time about road safety, traffic speeds and anti-social behaviour resulting from vehicles using the road. The Council says there are existing traffic calming measures on the road and before August 2018 it had no history of road traffic collisions reported to the police. The Council says it investigated introducing a highway scheme at the request of residents and the Ward Member but this was not done as part of its statutory obligations relating to the investigation of road traffic collisions.
  2. The Council wrote to residents in September 2017. The letter was headed ‘Proposed (Experimental) No Entry Restriction’ and explained the Council was proposing to introduce a No Entry restriction along a section of the road. The Council stated the purpose of the proposed measure was to address road safety concerns caused by vehicles using the narrow lane as a rat-run. The Council stated the restriction would apply to all vehicles and included a drawing providing details of the proposal. The Council asked residents to send their opinions on the proposal “from which a decision will be taken on whether or not to implement the No Entry restriction.” The Council asked residents to send their comments either supporting or objecting to the scheme by 29 September 2017.
  3. The Council’s letter confirmed it would use an Experimental TRO to implement the measures if the proposal went ahead. The Council explained there would then be a six month statutory consultation period from the date the TRO came into force and it would only remain for 18 months. The Council would then need to decide whether to remove the restriction or make the measures permanent. The enclosed drawing set out the proposed new signage and road markings.
  4. Officers provided a summary of the responses received to Councillors at the beginning of October. The Council confirmed it had sent 19 letters and received 13 responses with 10 in support and 3 against. Officers explained that while most residents supported the proposal there had been an objection from a local school. The recommendation was to implement the scheme.
  5. Mr B has provided the Ombudsman with a copy of an email dated 17 November 2017 which stated that following the recent informal consultation the Council had decided to proceed with the scheme. This email also explained the Council had decided to change the proposal to include physical barriers and would need to design an acceptable scheme.
  6. The Council subsequently received a significant number of objections to the scheme at the end of January 2018. The Council decided to review the scheme and process followed before reaching a final decision.
  7. The Council met with the local school in February to discuss the possibility of maintaining vehicle access for the school using a school operated gate. The Council highlighted issues of safety, cost and ongoing maintenance with such a gate. The Council also considered a safety audit, risk assessment and legal agreement with associated costs would be required to implement a gated solution.
  8. Officers recommended the Council should not proceed with the scheme in April 2018 due to the issues highlighted with installing a gated access given the low number of vehicles using the road on a daily basis, the small number of residents that would benefit, the existing traffic calming measures on the road and an accident record that did not justify crash reduction measures. In summary it was considered the complexities, costs and risks associated with the scheme were not proportionate to the perceived problem it was intended to address. The Council decided not to progress the scheme.
  9. The Council wrote to residents towards the end of April to say it had decided not to implement the scheme. The Council explained that following the consultation consideration was given to including gates that would allow enforcement of the proposed restriction with an option to maintaining vehicle access through the gate at the start and end of the school day. The Council set out its view that the scheme itself would generate road safety issues in the area and cited the following reasons for its decision not to proceed:
  • the use of gates would increase vehicle turning movements at the junction which raised safety issues for all road users;
  • there were no road safety grounds to implement the scheme given the good safety record of the road and fears of a future accident were not enough to justify implementation;
  • there were existing traffic calming measures in place on the road which was subject to a 20mph speed limit; and
  • the road was also subject to an existing TRO to restrict traffic movements (access only signs).
  1. The Council met with residents in early May to discuss the above decision.
  2. The Council says it was keen to ensure any proposals for changes to the highway met with the support of all residents and businesses relying on the use of the road to carry out their daily activities. The Council also wanted to ensure any proposals were appropriate and proportionate to the severity of the issue and did not create an unnecessary burden on key stakeholders in relation to enforcement or maintenance. The Council says it became clear it could not meet these objectives and so the scheme presented at the informal consultation was ultimately not progressed.
  3. The Council says it has undertaken some minor works to improve compliance with the existing TROs in place and would monitor the crash history of the road in future in line with its statutory responsibilities. The Council arranged a speed survey on a section of the road between 22 and 28 May 2018.
  4. The Council wrote to residents in November about works to reinforce the existing TROs in place. The Council confirmed it had assessed the existing road signs and speed cushions on the road to ensure they were satisfactory and fit for purpose. It also provided a summary of the speed survey results from May which showed average speeds were between 16 and 20 miles per hour. The Council considered the speed cushions were effective in keeping vehicle speeds to an acceptable level. The Council also confirmed works undertaken to a nearby traffic island and associated signage. The Council confirmed it did not propose any further works at this location but would continue to monitor the situation and ensure any changes to the crash record were identified and analysed.
  5. The Council accepted in its Stage 1 complaint response to Mr B in February 2019 that its communication around the decision not to implement physical access restrictions on the road and its previously stated intention to implement the scheme could have been more effective. The Council stated it would review the process for progressing such schemes in future and improve its communication with road users and residents. Mr B escalated his complaint in March.
  6. The Council provided its final response to Mr B at the end of March. The Council provided information about the location and results of the May 2018 speed survey and a chronology of the events culminating in its decision not to proceed with the scheme.
  7. Mr B told the Ombudsman there had been more recent serious accidents at this location. The Council has provided a copy of the crash data for the road supplied by the police. This shows one crash occurred in August 2018 when a vehicle swerved to avoid an animal on the carriageway and hit a tree. The Council has confirmed its engineers would be examining this in more detail but the initial view was that the accident was unlikely to trigger the need for changes to the highway layout at this location.

My consideration

  1. As the speed survey was completed in May after the Council’s decision in April not to proceed with the scheme, I do not consider further investigation on this point is warranted.
  2. This process was not a statutory consultation. The Council’s letter in September 2017 did not say that it would implement the scheme if there was a majority in favour or that it would reject late representations. The letter does say the Council would decide from the opinions provided but does not say how it would weigh those opinions or how it would proceed in the face of objections.
  3. The Council did receive objections during the consultation period although most residents were in favour of the proposals. The additional objections received outside the consultation period built on the objections already received.
  4. It is clear the Council sought to overcome the objections received including through considering the use of a gated access. This is not evidence of fault. The Council ultimately decided the risks and costs associated with such a solution were not proportionate to the issues raised. This was a decision the Council was entitled to reach.
  5. However, it is clear residents were initially told after the consultation that the Council intended to proceed with the proposal although this had been amended as a result of the consultation and an acceptable scheme would need to be designed. This understandably raised residents’ expectations. It would have been good practice to write to residents with the outcome of the consultation making clear that there were objections to the scheme the Council wished to overcome. There was also a significant delay between the end of the consultation period in September 2017 and April 2018 when the Council wrote to residents to say it had decided not to proceed with the scheme. I consider this delay and the Council’s failure to keep residents properly informed is fault. I also consider the lack of clear communication at the outset exacerbated the situation and led to residents’ expectations being unreasonably raised. Whilst this is regrettable there are no grounds for me to ask the Council to re-run the consultation process or insist it implement the scheme.

Agreed action

  1. In order to remedy the injustice of residents’ expectations being unreasonably raised I would ask the Council to:
      1. write to Mr B and other affected residents on whose behalf Mr B has acted to apologise for the failings identified above; and
      2. provide the Ombudsman with the outcome of its review of the process for progressing such highway schemes in future including how to improve its communication with road users and residents within three months of my final decision.

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Final decision

  1. I have completed my investigation. I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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