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Birmingham City Council (21 000 222)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 13 Dec 2021

The Ombudsman's final decision:

Summary: Mr B complained the Council does not enforce a Traffic Regulation Order where he lives. He also complained the Council allowed an event to go ahead in 2019 despite the disruption it causes. Mr B says the Council’s actions have negatively affected his enjoyment of his home. We found fault with the Council for poor record keeping and delays in its complaint procedure. The Council remedied the injustice caused to Mr B by these faults during its complaint procedure. It will also make service improvements.

The complaint

  1. Mr B complained the Council:
    • did not enforce a traffic regulation order (TRO) where he lives.
    • did not address issues with an uncontrolled pedestrian crossing.
    • allowed a Christmas 2019 event to go ahead in the area where he lives despite the disruption it causes.
  2. Mr B lives in the area and says the Council’s actions have negatively affected his enjoyment of his home.

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What I have investigated

  1. This is an ongoing matter. Mr B says there have been problems in the area since 2013. He made a formal complaint to the Council in September 2019. Mr B could have made a complaint sooner and therefore, I have focused my investigation on matters that occurred from 2019 onwards.

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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 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. 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)
  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. I considered:
    • Mr B’s complaint and the information he provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mr B and the Council commented on this draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

Traffic regulation order (TRO)

  1. Under the Road Traffic Regulation Act 1984, councils that are traffic authorities have a duty to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking on and off the highway. Councils generally fulfil this duty by making traffic orders.
  2. Traffic regulation orders (TRO) specify where people may or may not park and for how long. Councils use signs and lines such as single and double yellow lines to communicate the restrictions.
  3. The English Parking Contraventions Regulations 2007 enable a civil enforcement officer, where they have reason to believe a penalty charge is payable for a stationary vehicle in a civil enforcement area, to issue a fix a penalty charge notice (PCN). Police enforce moving traffic offences.
  4. The Council operates a five-minute observation time for vehicles parked in a restricted street during prescribed hours or in a loading place during restricted hours without loading.

Pedestrian crossings

  1. Pedestrian crossings should be located away from conflict points at uncontrolled junctions. A minimum distance of 20 metres is suggested for a signalled-controlled crossing and an absolute minimum of 5 metres for a Zebra crossing. (Department for Transport, 1995, Local Transport Note 2/95 - The Design of Pedestrian Crossings” (LTN 2/95)

Premises licences

  1. Authority for the provision of 'licensable activities' may be provided by the grant of a premises licence. An application for a premises licence must be accompanied by:
    • an ‘operating schedule’
    • a plan of the premises to which the application relates (in the ‘prescribed form’); and
    • if the licensable activities to which the application relate includes the supply of alcohol, a form of consent given by the individual to whom the applicant wishes to have specified in the premises licence as the ‘designated premises supervisor’ (the ‘DPS’).
  2. If the council does not receive any objections, it must grant the licence subject to such conditions consistent with the operating schedule accompanying the application and any conditions that are mandatory under Licencing Act 2003.

Statutory nuisance

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.

Council’s complaint procedure

  1. The Council has a two-stage corporate complaint procedure.
  2. Stage 1: The service will investigate the complaint and respond within 15 working days.
  3. Stage 2: An independent council officer will review the complaint and respond within 20 working days.

COVID-19 pandemic.

  1. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes including travelling to and from work, but only where this was necessary. In May 2020, the Government said people who could not work from home should return to the workplace. In September 2020, the Government announced new restrictions including working from home. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021.

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What happened

  1. This section includes key events in this case and does not cover everything that happened.
  2. Mr B lives in the city centre on street 1 near street 2.

Traffic regulation order (TRO)

  1. A TRO is in place for street 1 making it a pedestrian zone. Vehicles are prohibited to use the road, except for taxis and for access to off-street. Loading and unloading is allowed between the hours of 4am and 11am. At any other times no waiting is allowed.
  2. If a motorist drives into the pedestrian zone and leaves their vehicle stationary, the Council commissioned parking enforcement team can issue a penalty charge notice (PCN) to the motorist. The road is mainly double yellow lines, and the five-minute observation time applies.
  3. The parking enforcement team patrol the street daily. Between September 2019 and September 2021, it issued 947 PCN to vehicles parked in street 1. The Council does not have the power to act against motorists who drive through street 1; moving traffic offences are a matter for the police.
  4. Between September 2019 and September 2021, the Council scheduled seven joint operations with the police for street 1. In August 2020, the Council carried out a joint operation with the police for six nights. In total, 44 PCNs were issued to vehicles on street 1 during this operation.

Christmas 2019 event

  1. In 2017, the Council issued a premises licence to the event organisers of the Christmas events. The Council did not receive any objections to the premises licence.
  2. The event organisers ran the Christmas event in 2018. Mr B complained about the noise for the event to the organisers and raised the issue with the Council’s environmental health department.
  3. The event organisers decided to run the event again in 2019. They provided the Council with a copy of its 2019 event manual. This included an operating schedule, plan of the event area, details for the designated premises supervisor and a noise management plan. The event held in the area where Mr B lives.
  4. The Council held a Safety Advisory Group (SAG) meeting in September 2019 to discuss the event. Invitees included West Midlands Police, West Midlands Ambulance Service, West Midlands Fire Service, Council Safety Services, Council Commercial Waste, Council Environmental Health, Council Events, Council City Centre Management and the event organisers. The Council could not find the minutes of the meeting.
  5. Following the meeting the event organisers updated their event manual. They send a copy to the attendees of the Safety Advisory Group (SAG), Council Highways and Council resilience team.
  6. Mr B raised concerns with the Council about traffic congestion and that an uncontrolled pedestrian crossing on street 2 would make it worse. The Council Highways advised:
    • The event organisers need to keep the full width footway around the perimeter of the site clear to allow pedestrians to pass if access to the site had to be closed on reaching capacity
    • The Zebra crossing on street 2 was busy at times. It suggested the event organisers expanded the footway area on the event side of the Zebra crossing so pedestrians could move freely on to and off the crossing to avoid a build-up.
  7. The event organisers added these recommendations to the event manual.
  8. In November 2019, the Council met with the event organiser to discuss Mr B’s concerns about noise. They agreed:
    • The event organiser would liaise with Mr B about the noise levels.
    • If Mr B made a noise complaint, the Council’s environmental health department would monitor the noise.
    • If the Council decided the noise levels were obtrusive, the organiser would act as directed by the environmental health department.
  9. The event organisers added the first two agreed actions to their noise management plan. The organisers sent the updated plan to those listed in paragraph 31.
  10. The Council updated Mr B. He advised he was on holiday until 13 December 2019.
  11. The Christmas 2019 event ran for 24 days between November and December 2019. The event was open daily between 12noon until 9pm. The Council undertook a safety inspection the morning the event opened to the public.
  12. In December 2019, Mr B contacted the Council about the noise created by the event. He said he had not been able to agree noise levels with the event organiser. The Council told him to register a noise nuisance concern which he did. The Council could not attend on the day to witness the noise because its out of hours response service was suspended. The Council apologised for this. In response to enquiries, it explained its out of hours response service was suspended over the Christmas and New Year period because Magistrates Courts had considered events during this holiday period part of the fabric of life and not statutory nuisances. The Council’s environmental health department was able to respond to noise nuisance complaints over that period during standard office hours. In 2019, the Council suspended the service earlier than previous years. The Council does not have records to explain why, and it did not tell Mr B.
  13. The Council told the event organisers it had received a complaint about noise and would investigate. It told the organisers if they felt the complaint was justified, to consider taking steps to ensure no further noise nuisances occurred.

Complaint

  1. In September 2019, Mr B made a formal complaint stating the Council had failed to enforce a TRO and granted permission for the Christmas 2019 event.
  2. The Council responded in October 2019. It explained the actions it could take to enforce the TRO and advised its enforcement contractor has issued 72 PCNs between July and August 2019. It said it had carried out joint operations with the police and this would continue. The Council gave Mr B details of the Christmas 2019 event. It advised the highways team attended the Safety Advisory Group (SAG) and did not raise any concerns about the event and extra traffic build-up. It told him it had granted a premises licence and the event organisers had to adhere to conditions, including the event closing time. It said the event organisers had given residents a number to call if they had a complaint about noise during the event. The Council gave Mr B details of how to raise a noise nuisance issue with it directly.
  3. Mr B raised the issues with the Council again in November 2019. The Council replied in December 2019. It apologised for its delay and any inconvenience this caused. It recognised the increased levels of traffic over the festive period presented a challenge. It advised officers would continue to monitor the area and if needed, review the traffic management arrangements. It explained the Council was not running the Christmas 2019 event. It said the event was discussed at the Safety Advisory Group (SAG) and the group considered hostile vehicle mitigation, health and safety, pedestrian movement, security levels, emergency evacuation and highways matters. It advised there were no objections to the event and the Council issued a premises licence.
  4. Mr B raised the issues again in August 2020. The Council replied in October 2020. It apologised for the delay. It advised it had audited the measures in place to address the parking and traffic problem to ensure the road markings and signing of the TROs robustly supported enforcement. It said following the audit it had decided to undertake some remedial works. It told Mr B it was working with its partners, including the police, to address the issue and was going to set up a ‘task to finish’ group to coordinate the work.

Analysis

  1. The Council’s contractors patrolled street 1 daily and issued PCNs to stationary vehicles who breached the TRO. The Council did not have the power to enforce moving traffic offences. Between September 2019 and 2021, the contractor issued 947 PCNs and the Council scheduled seven joint operations with the police who could enforce moving traffic offences. The police were unable to attend all the scheduled operations, this was not the fault of the Council. The Council ensured the area was patrolled and the TRO was enforced. I did not find fault with the Council for how it enforced the TRO.  
  2. The Council ensured the organisers of the Christmas 2019 event met the requirements of the premise licence before and during the event. It told the organisers to add measures to their event plan, including actions to manage noise and the Zebra crossing. I did not find fault with the actions the Council took in preparation for the event.
  3. Mr B reported a noise nuisance during the Christmas 2019 event. The Council wrongly told Mr B its out of hours response service would investigate when this service had already been suspended for the festive period. The Council gave Mr B misleading advice, and this was fault. When the environmental health department reviewed his report during its standard working hours, the noise had stopped. The Council’s failure to give Mr B the correct information may have caused him frustration. The Council apologised to Mr B at the time. This was a suitable remedy.
  4. There were delays in the Council’s responses to Mr B’s complaints. The Council tried to resolve Mr B’s complaints during the delays, but these still may have caused Mr B frustration. The Council apologised to Mr B for delays in its complaint responses. This was a suitable remedy.
  5. In response to enquiries, the Council could not provide minutes for the Safety Advisory Group (SAG) held in October 2019 or records to show why it suspended its out of hours response service earlier than normal in 2019. Not keeping complete records of the Council’s decision making is fault. This fault did not cause significant injustice to Mr B.

Agreed action

  1. Within one month of the final decision, the Council will:
    • Issue guidance to the departments involved in this complaint about record keeping.
    • Remind those who manage corporate complaints about the timescales for responding at each stage and the importance of meeting these deadlines.
  2. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Mr B's complaint. There was fault by the Council which caused injustice to Mr B. I am satisfied the Council has taken action to remedy that injustice. The Council will also make service improvements.

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Investigator's decision on behalf of the Ombudsman

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