North Yorkshire County Council (19 006 645)

Category : Transport and highways > Traffic management

Decision : Not upheld

Decision date : 23 Dec 2019

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s plan to convert the footpath on his road into a shared cycle path. The Council was not at fault in the way it planned to introduce a sustainable transport scheme.

The complaint

  1. Mr X complained the Council took forward plans for a shared cycle path on the road where he lives without consulting residents who will be affected and without considering alternative options. He said the plans:
    • are not fit for purpose;
    • do not comply with width guidelines;
    • are not safe (for pedestrians or motorists accessing their driveways) and;
    • will spoil the natural aspect.

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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:
    • Mr X’s complaint and supporting information;
    • the Council’s responses to Mr X’s complaint;
    • Department of Transport Local Transport Note 1/12 Shared Use Routes for Pedestrians and Cyclists
  2. I provided Mr X and the Council with a draft of this decision and considered their comments before making a final decision.

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What I found

  1. To introduce changes to the highway, a council must make a Traffic Regulation Order (TRO) in accordance with the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (the Regulations).
  2. There is no legal obligation for a council to consult with residents, but councils will generally carry out informal consultation before deciding whether to go through the formal process of creating a TRO. Any informal consultation is not binding. It is for councils to decide how to use the results of consultation.
  3. To convert a footpath running alongside a road to a shared use path, a council must remove restrictions on the footpath’s use under the Highways Act 1980. It then needs to construct the shared path. The Highways Act does not place any statutory duty on councils to carry out consultation.
  4. The Council’s highway maintenance plan includes a strategy to engage in regular consultation to understand views, needs and priorities of highway users. Planned works will take account of consultation results.
  5. Council policy is to actively involve the community in the decisions it takes in order to improve services and respond to need. Its engagement promise is to make sure residents have the opportunity to be involved in decision making when appropriate and to feedback what has been said and what it will do.
  6. National guidance on shared use routes explains the importance of the quality of the design. Shared use routes can be controversial and have been implemented inappropriately in urban areas. The guidance expresses a general preference for cyclists to use the carriageway rather than having a shared use footpath. However, it does not discourage shared use where appropriate.
  7. The guidance states: “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.”
  8. Un-segregated shared use paths are used by pedestrians and cyclists without any measures of segregation. They are designed to enable pedestrians and cyclists to make use of the entire width of the path.
  9. Segregated shared use paths are also used by both pedestrians and cyclists, but with features in place to separate the two.
  10. The guidance says: “on segregated shared use routes, and where cycle flow is predominantly one-way, the preferred minimum effective width on the cycle track side is two metres”.
  11. The guidance goes on to say: “Where there is no segregation between pedestrians and cyclists, a route width of three metres should generally be regarded as the minimum acceptable”

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What happened

  1. The Council was awarded funding from the government’s National Productivity Investment Fund to deliver a Sustainable Transport Package in the town where Mr X lives.
  2. The Council planned to improve junctions, install smart traffic lights, make extra lanes and build a new off-road cycle route, along the road where Mr X lives. The Council intended to improve safety and ease congestion along the route. Its short-term aim was to address queuing traffic and long term it wanted to provide capacity for future growth.
  3. Surveys and design work started in April 2018 and the Council aimed to update the public on design and programme delivery via its website.
  4. The Council held a public engagement event in January 2019 to allow residents and interested parties to comment on designs. The Council said the event was attended by over 200 people and all comments were considered as part of the final design of the scheme. The Council published some of the feedback in a Questions and Answers (Q&A) document on its website.
  5. Mr X contacted the Council by email on 23, 24 and 30 January to raise concerns following the engagement event.
  6. The Council replied on 6 February 2019. It said the purpose of the engagement event was to engage with the community about the scheme and draft design. Feedback will be considered as part of the final design. It invited comments from residents through social media and local press adverts and said a Q&A document would be published on its website, which would include Mr X’s concerns.
  7. The Council told Mr X the next step was for the design to be finished taking account of issues raised in the engagement event. A Traffic Regulation Order (TRO) consultation would then be needed. The Council agreed to a site meeting with Mr X, scheme designers and its project lead.
  8. Mr X’s local MP wrote the Council on Mr X’s behalf on 4 March 2019. The letter said funding was applied for without prior consultation, the designs were contrary to Department for Transport guidance and the Council had not engaged with residents. Mr X was also concerned about the impact on trees.
  9. Mr X complained to the Council on 13 March 2019. He said due process was not followed because the Council:
    • Didn’t consult with or notify residents. It only took advice from the cycle forum.
    • Didn’t consider the impact on residents and businesses and refused contact with residents for over a year.
    • Didn’t give feedback forms, record attendance or take minutes at the engagement event. It was just an information giving event.
    • Designs were contrary to Department for Transport guidance, had no data on current road use, no record of why off-road was chosen ahead of on-road, and minimum width standards were not complied with.
  10. The Council wrote back to the MP on 21 March 2019. It said bids for funding do not always allow for prior consultation, but the cycle route would contribute to key transport links. The Council held an engagement event in January 2019 where it presented a draft design for comments. It has since revisited the design in response to concerns. This has included additional signage, lining and a crossing facility. The Council said it was in contact with Mr X about the concerns he raised and had published a Q&Q document following consultation. The Council had told Mr X the final design will go through an independent safety audit. It said it sought to minimise impact on trees and the junction design was informed by traffic modelling. It said it planned to meet Mr X on site to discuss feedback on the designs.
  11. The Council responded to Mr X’s complaint on 28 March 2019. It said Mr X had raised the same issues via his local MP and it could only reiterate the responses already provided.
  12. The Council said the design plan was part of several plans to improve safety and ease congestion, accommodating existing traffic and future growth. This is recognised in the Local Plan.
  13. It said taking cyclists off-road is a key part of its sustainable transport package. There is no off-road cycle route linking new houses and employment sites to the existing cycling network and recognised service centre. This is part of the Borough Council’s cycling delivery plan, which was agreed after online consultation.
  14. The Council said funding applications did not always allow for prior consultation, but the cycling plan identified a cycle route which would improve a key transport link in the town.
  15. It said the purpose of its engagement event was to present draft plan designs for comments. It collated issues raised and changed the designs where necessary. This has resulted in additional signage, lining and an extra crossing facility. It published a Q&A document online after the event and this dealt with many of Mr X’s design queries.
  16. The Council said it was due to meet Mr X on site the following week and his concerns could be addressed then.
  17. The Council met with Mr X on 2 April 2019 and walked the route of the proposed cycle path with him. It listened to Mr X’s concerns and agreed to look at whether a bus stop could be moved. It told Mr X it would look at shared use of the footpath rather than segregation, as the consultancy firm the Council employed thought this was better for pedestrian/cyclist relations and speed calming. The Council told Mr X it was working to save trees or plant replacements.
  18. Mr X asked for his complaint to be escalated to stage 2. He said reiterating previous responses served no purpose. He asked for details of the Borough Council’s consultation event and the outcome. He said the Council had given no number on who objected and who was in favour of the designs.
  19. The Council sent its final response on 2 May 2019. It said it reviewed the correspondence and saw no benefit to undertaking further investigation. It said it followed procedure and met with Mr X to discuss his concerns. It said escalating his complaint would not stop the work continuing.
  20. Mr X brought his complaint to the Ombudsman on 22 July 2019. He wanted the Council to properly engage with the community, listen to grievances and postpone the plans until the community agrees them. If not, then cancel the plans.

Response to my enquiries

  1. The Council told me its officers have been addressing concerns raised since the January 2019 engagement meeting and has amended its plans accordingly. These include reducing the number of trees lost, changing the location of a bus stop and addressing potential speed of cyclists with extra signage and lining.
  2. The Council has been in correspondence with Mr X and met with him on site to discuss his concerns.
  3. The Council will set up a project steering group with key stakeholders and hold meetings at intervals throughout the project. Key stakeholders include:
    • The Borough Council.
    • The District Cycle Forum.
    • The District Chamber of Trade and Commerce.
    • A local resident group.
    • A local business group.
    • Parish Council’s.
  4. The Council told me, while it doesn’t have physical evidence of its consideration of on-road alternatives, its engineers have previously considered introducing a formal cycle lane, but the road is not wide enough. The aim of the proposals is to reduce existing and future impact of vehicles on the road and to ease congestion. A cycle route on-road would not achieve this. By having a cycle route off-road, the Council aims to encourage all users to cycle, including new cyclists and families.

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Analysis

Consultation

  1. The Council was not under a duty to carry out consultation before it put in its bid for central funding. It told Mr X it cannot always consult before a funding bid is sent. While I understand Mr X’s view this would have been best practice; I cannot say not doing so was administrative fault. The Council took on board the views of residents once it had secured funding. It held an engagement event where residents could raise issues and then it published a Q&A document online. Some of the issues raised resulted in amendments to the plan designs. The Council also responded to Mr X’s questions and had a meeting with him. The Council did consider the issues Mr X raised and it did engage with him about his concerns. Mr X does not agree with the Council’s responses, but it is not under a duty to act on objections, only consider them, which it has done.

Alternate options

  1. The Council confirmed in its Q&A responses it wanted the cycleway to be used by a range of cyclists, including children, and not just experienced ones. It did not consider the road as safe for this purpose. The Council says an on-road cycle lane will not help achieve its aim of easing congestion and the road is not wide enough. National guidance recognises there are times when there may be reasons a shared footpath design may be the most suitable, such as for safety reasons and when the path is designed for less confident users. It also recognises they can be an aim in their own right, which the Council said is part of its Sustainable Transport Package and the local Cycling Delivery Plan. The Council has considered why an on-road scheme was not suitable and its plan to introduce an off-road cycle path was not fault.

Fit for purpose

  1. Mr X questioned the need for a cycle way, or how it can reduce congestion, if the Council has no data on current traffic levels or pedestrian and cycle use. However, the Council produced a traffic model report to go with its bid. This examined congestion and the impact of a cycle path and junction improvements. It also pointed out in its Q&A responses the cycleway plans were based on findings from a feasibility study from 2016.
  2. Mr X said the Council did not consider the impact on residents and local businesses. The Council did carry out informal consultation after funding was secured. It then amended to the designs following comments. It wanted the cycle path to be used by residents, including from new nearby housing estates, to travel into the town (including commuting for work). In its Q&A response the Council said it will work with businesses and schools to promote sustainable travel. The Council was not at fault.

Width guidelines

  1. The guidance sets out the preferred width of shared use paths. It does not place a duty on authorities to build paths by these measurements. However, the Ombudsman would expect the Council to give reasons if it decides not to follow guidance. In response to the consultation comments, the Council said it was not possible to widen the paths at some sections. This was due to budget constraints and because of the existing street layout, such as grass verges and trees which it did not want to remove. The Council is not at fault for not strictly adhering to the guidelines in these circumstances.

Safety

  1. The Council considered Mr X’s concerns about safety, including the speed of cyclists and the danger when residents accessed their driveway. It said the danger to cyclists when vehicles enter or leave their driveway is the same as the current situation for pedestrians, and cyclists will be on the outer edge of the pathway. It also said it would consider the speed of cyclists if it became an issue and there are speed reduction measures in place at junctions. It said there was inadequate width on the road to safely separate cyclists from traffic. It also said the design will be subject to road safety audits and there will be further safety audits on completion and after 12 months. A resident said pedestrians may be in danger from cyclists, just as cyclist are at risk from cars when on the road. The Council said the issue was not same due to the speed differentials, with cars averaging 30mph but bicycles only 10mph. Mr X disagrees with the Council’s position on safety, but I cannot say the Council has not considered the issue. Independent safety audits will also take place. There was no fault.

Natural Aspect

  1. Mr X is unhappy at the removal of trees and grass verges, and the visual impact of the new design. The Council accepted it had to remove trees but said it tried to ensure only the minimum number was removed and there was a replanting policy to replace all removed trees in other locations. It also said it had compromised on a narrower width to the footpath at some sections to keep existing trees and grass verges. The Council had to make compromises between design and the visual impact. It was not going to please every resident. The Council has showed it considered the impact on the existing natural aspect and it tried to maintain it in some sections of the route. Where it was not possible to do so, it made plans to replant trees which had to be removed. The Council was not at fault.

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Final decision

  1. I have completed my investigation. The Council was not at fault in the way it planned to introduce a sustainable transport scheme.

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Investigator's decision on behalf of the Ombudsman

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