Summary: Mr C complains about the Council’s decision making process to make permanent an experimental weight restriction at a level crossing. Mr C says the restriction has resulted in the displacement of heavy goods vehicles along the route his son uses to go to school which causes unacceptable pollution and safety risks. The Ombudsman has found no fault in the way the Council reached its decision.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has relied on information from a flawed traffic trial when deciding whether to make permanent an experimental weight restriction at a level crossing. Mr C raises particular concerns about the Council’s air quality monitoring, its analysis of traffic movements and consideration of health and safety risks.
2. Mr C says the restriction has resulted in the displacement of heavy goods vehicles (HGVs) along the route his son uses to go to school which causes unacceptable pollution and safety risks.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

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

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What I found

7. The Council has provided a copy of its report ‘Proposed Heavy Commercial Vehicle Restriction over Norton Level Crossing’ dated February 2016. This report sets out that the Council was considering prohibiting certain Heavy Commercial Vehicles (HCVs) from using the level crossing to help improve the air quality in the Malton Air Quality Management Area (AQMA). The AQMA was declared in 2009 because concentrations of nitrogen dioxide exceeded the annual mean air quality objective at several locations. The report provides a detailed assessment of the potential impact on road traffic air pollutant emissions from such a prohibition.
8. The Council has also provided the Ombudsman with details of its consultation ahead of the introduction of the experimental 7.5 tonne weight limit at the level crossing. The Council wrote to stakeholders in January 2017 about its proposals and has provided a copy of the responses it received.
9. The Council made the order prohibiting HCVs with an operating weight over 7.5 tonnes over the level crossing on 9 February 2018 for an experimental period of 18 months.
10. The Council completed a subsequent online consultation between 3 and 24 May 2019 seeking views on whether the experimental order should be made permanent. The Council has provided a copy of the responses it received. These included concerns that traffic issues and associated air pollution issues had been transferred to residential areas of the town including past two primary schools, the displaced traffic presented a danger to other highway users and meant heavy vehicles were now using unsuitable roads.
11. Mr C has confirmed he moved into his property in June 2018 after the start of the experimental weight restriction and did not take part in the online consultation.
12. The Council produced a delegated report dated 26 July 2019. This set out the available information on the impact of the experimental weight restriction which was due to expire in August 2019 and the outcome of its public and stakeholder consultation. The report noted the order could not be amended only made permanent or revoked. The report provided a summary of the representations it had received about the order and the results of air quality monitoring and traffic surveys. The report recommended that the order be made permanent but that it should remain under review with a further decision once the implications of changes to the local rail service were evident. The Council decided to proceed with making the order permanent.
13. The above report refers to improvements in air quality after the restriction. Mr C suggests this throws doubt on the air quality recordings for the areas now being used by the displaced HCVs as it would be reasonable to expect to see a corresponding reduction in air quality at these locations. The Council says that reductions in nitrogen dioxide levels within the AQMA have been observed at all monitoring points over the past six years and that these reductions are largely due to the tightening of vehicle emission standards and the emergence and increase in use of low emission and ultra-low emission vehicles. The Council says the improvement in air quality at the monitoring points in 2018 directly affected by the restriction can be attributed to a combination of ‘cleaner vehicles’ and the restriction itself. The Council also highlights that not all the HCVs displaced by the restriction would have been re-routed through Highfield Road and greater displacement would have been elsewhere in the network. The Council also points to the significant amount of development in this part of Malton before the restriction with construction vehicles travelling along Highfield Road.
14. The Council accepts there would have been a significant increase in HCVs passing through Highfield Road due to the restriction. The Council suggests the nitrogen dioxide levels remaining the same could be explained by the increase in HCVs being negated by ‘cleaner vehicles’ but says nitrogen dioxide levels are significantly influenced by weather conditions which affect how pollutants are dispersed and all the relevant variables would explain why levels of nitrogen dioxide at the Highfield Road monitoring points remained the same for 2017 and 2018.
15. The Council in its delegated report refers to an expected increase in rail services from December 2019 and the need to review the weight limit following this and a Traffic Model which was being completed. The Council has confirmed the ‘Base Year’ Model is complete and the ‘Future Year’ Model is near completion. The impact of the increase in rail services in terms of increased barrier downtime at the level crossing has been tested through the Model. Various scenarios are being tested as part of an ‘Internal Junction Improvements and Traffic Signal Strategy’ (see below). The Council says it has not been provided with the new train timetable but is modelling a ‘worst case’ scenario where the barrier is down in close succession which reduces the length of time traffic has to clear. The Council was hopeful it could identify improvement(s) which can be made to how the highway network operates in Malton and Norton.
16. The Council has advised the Ombudsman that it has also completed a recent study with the District Council to investigate what measures could be undertaken to improve traffic flows and connectivity between Malton and Norton. One recommendation was to complete an Internal Junction Improvements and Traffic Signal Strategy. The Council has confirmed this work is underway and has been expanded to include a review of the HGV destination and routing arrangements and potential improvements. The Council has stated it will investigate what measures can be introduced to lessen the impact of HGVs on Highfield Road. The Council cannot say what the study will recommend about the weight restriction over the level crossing and, as set out in its July 2019 report, considers lifting the restriction without fully assessing the impact of the increased rail service to be premature, both in terms of the impact on traffic flows and air quality within the AQMA. The Council has confirmed it will not decide whether to lift the restriction until the full implications of the increased rails service are known. The new service was originally planned to be introduced in December 2019 but this has been delayed until May 2020. Meanwhile and as part of the above study, the Council has confirmed it will investigate what measures can be introduced to lessen the impact of HGVs on Highfield Road.
17. Based on the information provided, I am satisfied the Council had enough relevant information to reach a sound decision and considered properly the representations made to it. These included the concerns about the displacement of vehicles and impact on residential areas including the road near Mr C’s property and on his son’s school route. The Council has provided cogent reasons for its decision which was one it was entitled to make. I have seen no evidence of fault in the decision making process which would allow the Ombudsman to question the decision reached. I also note this matter will be looked at again by the Council once the full implications of the increased rail service are known and that it is currently investigating what measures can be introduced to lessen the impact on Highfield Road.

Final decision

18. I have completed my investigation as I have found no evidence of fault by the Council in the way it has reached it decision to make permanent the experimental weight restriction.

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Investigator's decision on behalf of the Ombudsman