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Norfolk County Council (21 000 050)

Category : Transport and highways > Traffic management

Decision : Not upheld

Decision date : 25 Feb 2022

The Ombudsman's final decision:

Summary: Mr G complained about the Council’s consultation for a traffic regulation order. He says there were several flaws in the Council’s process. The effect was they were excluded from the consultation process and now have a bus stop opposite their home. He also complains the bus company used the stop as a terminus, contrary to the order, and the Council refused to take enforcement action. The Ombudsman’s decision is there was no fault by the Council.

The complaint

  1. The complainant (whom I shall refer to as Mr G) is represented by his father (Mr H). Mr H complains about the Council’s consultation for a traffic regulation order (TRO) that included a bus stop opposite Mr G’s home. He complains that:
    • at no point before they bought the property were they aware of the bus stop. The clearway and bus stop did not show up on the Council’s conveyancing responses;
  • the Council consulted using inaccurate information, as a map used for the consultations did not show the properties most affected by the proposals (this included the property they bought);
  • the Council carried out consultations on the bus clearway before the properties most affected were built. It should have waited. This was a reasonable course of action, as temporary stops were in place and the stop’s use did not start until after the developer had built the properties;
  • a later consultation did not mention the bus clearway. This was understandable as the earlier consultations had done that. The stop that affects them was already built by that time. So this consultation was not an opportunity they could have used;
  • the Council did not carry out a thorough risk assessment. This includes the danger to children who play on a green area on the other side of the road;
    • the Council did not consider the Equality Act and Human Rights Act implications of installing the bus stop opposite their home and then telling them to install a window cover.
  1. Mr H also complains the bus operator began to use the bus stop as a terminus. This was contrary to what the TRO allowed. But the Council refused to enforce the breach.
  2. As a remedy Mr G and Mr H want the Council to engage constructively with them on the issue. And to consider their suggestion to move the stop around 50 metres; to a place where it is not opposite residential buildings.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. 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)
  4. 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 complaint and the documents provided by Mr H;
    • made enquiries of the Council and considered its response;
    • spoken to Mr H;
    • sent my draft decision to Mr H and the Council and considered their responses.

Jurisdictional issues

  1. The Ombudsman’s Assessment Team issued an earlier decision on Mr G and Mr H’s complaint. Mr H provided new information about when he knew about some of the issues under complaint. We decided this showed he had made his complaint within 12 months of knowing about the issue (see paragraph 5). So it was something we would investigate.
  2. The Road Traffic Regulation Act 1984 has a right to challenge a TRO in court. The application must be made within six weeks. (Road Traffic Regulation Act 1984, Paragraphs 35 and 36 of Part VI of Schedule) That is an alternative remedy (see paragraph 6). But given the circumstances of the events, and when Mr G and Mr H became aware of evidence, I have used our discretion to investigate.

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What I found

Legal and administrative background

  1. Traffic regulation orders are made under the Road Traffic Regulation Act 1984 and its Regulations. (Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996)
  2. The Regulations set out the formal procedure an authority should follow.
    • Regulation 6 requires a council to consult with various bodies.
    • Regulation 7 requires a council to publish a notice in a local newspaper. A council must also “take such other steps as it may consider appropriate” to ensure adequate publicity.
    • Regulation 8 allows any person to object in writing within 21 days of the publication of a proposal.
    • Regulation 13 requires a council to consider any objections made under regulation 8 which have not been withdrawn. Regulation 14 says an authority can change an order, because of any objection, or for any other reason, before it is made.
    • Regulation 17 says a council must publish a ‘notice of making’ in a local newspaper within 14 days of making an order.

The Council’s Highway Service Manual

  1. The Council’s Manual has a procedure for TROs. This includes the following.
    • ‘Stakeholder consultation’ – this mirrors the consultation required by Regulation 7.
    • If it receives no objections, the Council will then draw up the documents for the draft order.
    • Advertising the draft TRO in the local press and on the Council’s website.
    • A ‘letter drop’ for affected frontages.
    • If the Council receives objections that are not withdrawn, officers should prepare a report with recommendations for senior officers and elected members.

Local searches

  1. Solicitors or licensed conveyancers carry out local land searches for a person buying or selling land or a property. The search provides information about whether a property is listed, in a conservation or smoke control zone, or has tree preservation orders on trees on the land.
  2. In addition, a buyer can ask a series of standard questions covering planning, highway, building control, and environmental health. One enquiry form (CON 29) used in the search process asks for information not found on the legal registers. This includes notices under planning and highways acts. One of the questions that can be asked is about traffic schemes.

Discrimination and human rights

  1. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are:
    • age,
    • disability,
    • gender reassignment,
    • marriage and civil partnership,
    • pregnancy and maternity,
    • race,
    • religion or belief,
    • sex, and
    • sexual orientation.
  2. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. Not all rights work in the same way. Instead, they break down into three separate categories:
    • Absolute rights: those which cannot be interfered with under any circumstances.
    • Limited rights: those that can be interfered with in certain circumstances; and
    • Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest.
  3. One of the Rights is to a private and family life and the home. This right is a qualified one – and so can be interfered with in certain circumstances. It does not seek to restrict all development simply because it affects the privacy of others. The threshold for finding a breach is high. For example a challenge brought against the Government’s decision to approve expansion of Heathrow Airport failed as the public interest was deemed to outweigh the loss of amenity caused to local residents in the form of increased noise and pollution. (R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant) UKSC 2020/0042)

What happened

  1. The amount of information provided by Mr H and the Council has been considerable. In this statement, I have not referred to every element of that information, but I have not ignored its significance.
  2. Mr G and his family live on a large new development in the County. The district council granted planning permission. The plans included proposals for traffic restrictions.
  3. In 2015 the Council consulted statutory consultees about proposals for a traffic regulation order to introduce restrictions, including bus clearways, asking for their initial views on its proposals. A bus clearway is a type of vehicle waiting restriction. The map showed the proposed bus stop and clearway opposite the plot that would later become Mr G’s home. There were no objections from the bodies the Council consulted.
  4. In 2017 the Council sent letters to properties already built that were directly affected by the proposed restrictions. The letter advised “…[t]he purpose of this letter is to seek initial views on the proposals prior to them being formerly advertised….”. It explained the proposals were for waiting restrictions, bus clearways and school keep clear markings. An information sheet with the letter described the exercise as a “preliminary consultation”. The letter enclosed a map of the proposals, which included the bus clearways and the locations of the bus stops across the estate, including the one opposite what is now Mr G’s home.
  5. Mr G and his family moved to the estate in 2018. Mr H says:
    • The bus stop did not show up during Mr G’s conveyancing searches; and
    • a few months after Mr G’s family moved in, a bus shelter was erected opposite their home, although buses did not start to use the stop then.
  6. In May 2019 the Council advertised the draft TRO. It says it erected site notices on the estate. It also wrote to hundreds of homes. The evidence shows the Council’s mailing list included Mr G’s property. The letters included the map for the proposals (see paragraph 21).This showed the position of the bus stop on the road where Mr G’s lives, and an outline of the bus clearway along with proposed double yellow lines. The map did not show the newly built properties on that part of the road, so Mr G’s house was not shown. The covering letter advised the effect of the Order was “…to prohibit waiting at any time along the lengths of road specified in the plan attached.”
  7. Mr G did not respond to this consultation – he says he did not receive the letter.
  8. The Council received some objections to parts of the proposals (although none about the bus stop that is the focus of this complaint). So, in line with its procedure, its officers considered the objections and then prepared a report. The report recommended approval of the TRO.
  9. The Council made the TRO at the end of 2019. It contains a list of vehicles that are free from the restrictions on waiting. One of the exemptions is for buses, but only for picking up and dropping off passengers.
  10. Buses started to use the stop outside Mr G’s home in early 2020. Mr G wrote to his parish councillor. His main request in those first contacts was to move the buses’ rest stop away from the residential areas. The councillor referred the complaint to the Council. Its response noted the proposals had been as those set out since 2015. It had followed the correct process and it was too late to make any changes.
  11. Mr G and Mr H continued communicating with the Council about the issues for several months afterwards, including through its complaints procedure. Mr G and Mr H suggested an alternative location for the stop. This correspondence continued into 2021 and was about both the consultation procedure and whether buses should be using the stop as a terminus.
  12. The Council did not change its position on the TRO procedure, or about whether it would move the stop. It did note however, the stop was in the wrong place (by around seven metres).
  13. With the use of the stop as a terminus, the Council advised Mr G and Mr H that this was a matter to take up with the bus operator. But it did contact the operator itself asking it to consider making a change. The operator has now stopped using the stop as a terminus.
  14. Mr H complained to the Ombudsman. In response to my enquiries, the Council advised:
    • it has not yet adopted the roads on the estate because what the developer has built do not match the plans. That means the roads are still the responsibility of the developer;
    • the Highways Act 1980 said a private road could not be maintained at public expense. That meant the Council’s view was it could not enforce the TRO: as it was on private land. So it remained the developer’s responsibility to enforce;
    • the proposals would not have shown up during Mr G’s conveyancing, as he had not paid for a copy of the agreements that would have shown it;
    • it had no choice but to use the most recent version of Ordnance Survey’s mapping when consulting on the TRO;
    • it was for the developer to have conducted a risk assessment when designing the estate. Anyway, the Council’s view was the location of the stop would not have led to its Highways Authority objecting;
    • it appreciated Mr G and his family’s concerns about privacy and security. But it did not consider this raised discrimination or human rights concerns. This was because the issue would be the same for any property situated along a bus route. It said “[i]t would not be feasible for this type of concern to be resolved by any means other than the application of appropriate window dressings by the occupier”
    • enforcing against buses using the stop as a terminus would be counter-intuitive to its statutory duty to ease congestion.
  15. The Council also sent me documents about the issue. These include:
    • a spreadsheet of addresses it wrote to in 2019. Mr G’s house is listed;
    • its comments on the objections it received to the 2019 advertisement.

Analysis

The consultation

  1. At the heart of Mr G and Mr H’s complaint is their view that the Council should have delayed its TRO consultation until after all the homes that would be affected by the measures were occupied.
  2. I have considered this issue and asked the Council to provide its documents to understand what it did and when. I have also considered the Council’s actions against the law and its own procedure. My decision is there was no fault in the Council’s actions, taking account of the following.
    • The 2015 consultation was not with residents; rather it was with organisations the Council was legally obliged to consult with. There was no need to await the completion of the estate to carry out this consultation.
    • The Council’s 2017 contact with some residents was a preliminary exercise. This was an extra step beyond what the law or its own policy expected it to do. I cannot criticise the Council for carrying out more consultation than the minimum needed.
    • The 2019 exercise was the advertisement of the TRO required by law. The Council also contacted residents directly, which the Regulations gives local authorities a wide discretion to do as they see fit. So the timing of this formal advertisement did not exclude Mr G or his neighbours.
    • I know Mr G did not receive the letter, so did not have a chance to object. But the Council does have Mr G’s address on its contact list. So, on the balance of probabilities, the non-receipt was not due to fault by the Council.
    • Mr H complains about the wording of the 2019 letter. He contrasts it with the 2015 and 2017 letters. But the 2019 letter included a map showing the bus routes and the bus stops. So the letter, when read with the map, was acceptable.
    • Mr H complains the map sent out with the TRO advertisement did not show Mr G’s house, nor others nearby. The Council has explained this is because it was using the latest version of the Ordnance Survey mapping, which that organisation had not updated to include the new houses. Mr H questions that statement: he says Ordnance Survey have told him otherwise. But I do not need to investigate this further. It is a reasonable expectation that any resident (including Mr G) looking at the map would have been able to locate where they lived and so provide comment on issues, such as the location of a bus stop. So I do not see a significant enough injustice to warrant further investigation of that issue.
    • Mr H says the Council should have carried out a risk assessment. He expresses concern about road safety implications, for children, while a bus is waiting at the bus stop, hindering visibility. Neither the law nor the Council’s procedure require a risk assessment in the TRO process. So I do not agree with Mr H on this issue.
  3. The documents the Council sent me show it considered the objections it received and gave reasons why these did not outweigh the merits of the proposals. That exercise followed the correct process. It is not for the Ombudsman to question the merits of properly made decisions. Looking at the Council’s overall view on the objections it received, I am not persuaded that it would have made a different decision even if Mr G had commented on the 2019 advertisement.

Discrimination and human rights

  1. Mr H says the bus stop overlooks Mr G’s home, allowing passengers to look into their bedroom. He says this is discriminatory and in breach of Mr and Mrs G’s human rights.
  2. I asked Mr H about protected characteristics affecting Mr G’s family. Mr H says Mrs G’s wife was breastfeeding at times when buses have been using the stop. So it was sex discrimination.
  3. Mr H also says the bus stop breaches Mr and Mrs G’s human right to their home. The Human Rights Act does confer a right to the private and family life and the home. But this right is a qualified one, with a high threshold.
  4. The Council’s explanations show it has taken account of equality and human rights issues. And I do not see fault in those responses. We cannot decide if an organisation has breached the Equality Act or Human Rights Act, as this can only be done by the courts.

Land searches

  1. The Council says Mr G’s conveyancer did not ask it to provide the information that would have shown the restrictions. So I see no evidence of fault.

The use of the stop as a terminus

  1. The wording of the TRO shows the Council did not intend buses to use the stop as a terminus. And the Council does not seem to dispute the bus company was using the stop for that purpose.
  2. A review of the Council’s files shows its view through Mr G’s and Mr H’s first contacts was that this was not an issue where it had any powers to intervene. I would have expected to see a contemporaneous record that it had considered enforcement and then reached a decision on whether it would do so. The Council has not sent me anything showing it considered this.
  3. There may be other records I have not seen. But my decision is I do not need to investigate this further. That is because:
    • the Council says it cannot enforce an unadopted road. Mr H disputes this. I do not have the highways’ law expertise to know who is correct. But I do not see that this is an issue the Ombudsman could determine;
    • the Council’s enforcement powers are discretionary. In response to later contacts about the issue, the Council has given reasons why it would not enforce the issue. It is not our role to question that view;
    • in any case, even if the Council had decided it wanted to enforce a breach, it is likely its first actions would have been an attempt to seek an informal resolution. As that is what it did do, I am not convinced the outcome would have been different;
    • the buses no longer use the stop as a terminus. So this is not an issue where there is an ongoing injustice.

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Final decision

  1. I do not uphold the complaint. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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