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Devon County Council (21 000 675)

Category : Transport and highways > Traffic management

Decision : Not upheld

Decision date : 01 Nov 2021

The Ombudsman's final decision:

Summary: Mrs M says the Council did not make the necessary investigations and enquiries before installing a zebra crossing outside a property she owns. She says this has caused her injustice because of increased pollution, a loss of privacy and potentially a loss of rental income and a reduction in the sale price. The Council was not at fault. The crossing was part of a scheme to reduce air pollution in the town. The Council collaborated with the district council and consulted the public before deciding on the plan. Mrs C’s objections were considered by the committee which approved the scheme.

The complaint

  1. Mrs M says the Council was at fault because it:
      1. failed to consult the public before installing a zebra crossing outside her property,
      2. failed to consider alternative sites for the crossing;
      3. failed to consider impacts on local people such as pollution;
      4. discriminated against her by making it impossible for her to apply for a dropped kerb allowing her to park a car in her front garden.
  2. Mrs M says the Council’s fault has caused her injustice because the crossing has increased pollution, caused a loss of privacy, reduced the potential rental income and sale price of her property, and have prevented her from applying for a dropped kerb allowing parking at the property.
  3. Mrs M says she would like the zebra crossing to be removed.

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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. I spoke to Mrs M. I wrote an enquiry letter to the Council. I then considered all the information I had before writing a draft decision.
  2. Mrs M and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Local Air Quality Management system

  1. Air pollution has long been a concern of the national government. The Local Air Quality Management system requires local authorities to assess air quality in their areas. One of the gases which causes particular concern is Nitrogen Dioxide. (NO2) which is often linked with particulate matter pollution (PM2.5). The government has required local authorities to work to monitor the levels of these and other pollutants in their areas and develop strategies to reduce them.

Traffic Regulation Orders

  1. If Councils wish to control parking in an area, they must do so using a Traffic Regulation Order (TRO). Councils will usually consult before doing so. However, the decision on whether to create a controlled parking zone rests with the Council.
  2. The procedure for introducing a TRO is set out in the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 (‘The Regulations’). The Regulations require councils to publish at least one ‘notice of proposals’. They must publicise the proposals. Anyone can object.
  3. Before making a TRO, councils must publicise the proposal by advertising in a local paper. They may also choose to notify those affected by post but this is not a requirement.
  4. Before making the order, the authority must consider all objections made. They must then publish a ‘notice of making’ in the local paper and take other steps it considers appropriate for alerting those who will be affected by the proposal.

What happened

Background

  1. Mrs C owns a house on a road (‘the road’) in a town in the Council’s area.
  2. In 2009, a survey of air quality showed that there were high levels of NO2 on the road. The Council created, along with the local district council and other bodies, a clean air strategy. One proposal was to ban on-street parking on the road. The Council believed this would significantly reduce congestion and therefore reduce NO2 and PM2.5 pollution.
  3. The Council also has policies requiring the improvement of traffic flow in order to encourage walking and cycling. The Council believed this scheme would support these policies too.
  4. In 2018, the Council’ published a study into traffic on the road which showed consistent queues on the road at rush hour.

Public consultation and inquiry

  1. In January 2019 the Council began a public consultation on the viability of removing parking spaces on the road to improve traffic flow. It publicised the consultation and invited people to comment. Various local interest groups responded mostly supporting the proposals.
  2. However, there was concern that increasing the traffic flow might also increase traffic speed. Therefore, a residents’ body suggested the inclusion of a zebra crossing near Mrs C’s house in order to provide a safe crossing for pedestrians and ensure that traffic did not speed up too much.
  3. In April 2019, the Council published an impact assessment of the scheme online. In May 2019, the Council’s cabinet gave the go-ahead in principle for the scheme.

Mrs C’s involvement

  1. In September and October 2020, notices which explained that the Council was intending to install a zebra crossing by Mrs C’s house were prominently placed on the road. The Council also arranged for letters to be sent to all those who lived within 25m of the site, including Mrs C’s property.
  2. In October 2020, Mrs C wrote to her local councillor objecting to the proposal. The councillor forwarded her comments to the Traffic Management Team.
  3. Mrs C also wrote to the Council directly objecting to the proposal for a zebra crossing. She said she was concerned about noise, light and air pollution if a zebra crossing was installed. She also raised concerns about the fact that her tenants would not be able to park outside the house and the effect the crossing would have on potential rental income and sale price of the property in future.
  4. The Council considered these concerns in its report to the Highways and Traffic Orders Committee. The Committee considered the proposal and approved it in November 2020. The minutes show that the Committee considered three alternative positions for the crossing and chose the one outside Mrs C’s house.
  5. Just before Christmas, the Council arranged for a leaflet drop at houses on the road telling them that the works would start in the new year. The Council explained that the works were intended to improve air quality and that a zebra crossing would be installed near Mrs C’s house.
  6. When the works were about to start, Mrs C wrote to her local councillors again. She complained about the lack of proper consultation and consideration of the positioning of the crossing.
  7. Once the crossing had been installed, Mrs C complained again saying the lights were too bright and disturbed her tenants’ sleep. The Council turned off the lighting on the crossing for some time while her concerns were investigated.
  8. Mrs C later wrote numerous emails to councillors asking for an explanation as to how the decision had been made to place the zebra crossing where it did.
  9. Mrs C later complained to the Council. She repeated her previous objections and also said the Council had not considered the impact of the crossing on her neighbour. She also said that the positioning of the crossing discriminated against her as she would not be able to apply for a dropped kerb outside her property which would allow her to use the front garden for car parking.
  10. The Council responded to her letters. Having exhausted the Council’s complaints process, Mrs C came to the Ombudsman.

Was there fault causing injustice

Failure to consult

  1. The Council, along with the local district council and other local bodies, first identified the road as a high NO2 area in 2009. It monitored traffic on the road in 2018. It held a public consultation on a proposal to remove on-street parking in early 2019. It has therefore been considering the improvements and consulting on them for some time.
  2. The original proposal did not include a zebra crossing. But, during the public consultation phase, a consultee expressed concern that this might increase traffic speed and make it difficult for pedestrians and the disabled to cross the road. A proposal emerged to include a zebra crossing halfway down the road; roughly where Mrs C’s house is situated.
  3. The Council published an impact report in April 2020. In September 2020, it placed notices on the road and put letters through houses near the scheme stating that the Council intended to build the zebra crossing. It was at this point that Mrs C first objected to the proposals.
  4. Mrs C’s concerns were forwarded to the Highways department which responded to them in their report to the Committee. Therefore, I find that the Council consulted as required. Mrs C put her concerns to the Committee before the decision to approve was made.
  5. The Council consulted appropriately. Therefore, I do not find fault.

Failed to consider alternative sites for the crossing

  1. Mrs C says that, by the time that the Council came forward with its proposal for the exact position of the crossing, its mind was, effectively, made up. She said it failed to consider whether the crossing was needed at all, whether it should be where it was eventually positioned. She says the Council failed to interview pedestrians to ask them where they wanted to cross and prioritised the needs of visitors over those of householders.
  2. Because it was intended to reduce the speed of traffic on the road, the crossing had to be roughly where it was eventually placed. But it is clear from the minutes of the November 2020 committee meeting that the Council considered three alternative sites. It selected the one it did on the advice of the road safety team.
  3. Proposals for such crossings frequently provoke objections but this cannot prevent schemes from going ahead. The Ombudsman cannot find fault providing the proposal has been properly considered. In this case, I find that it was.
  4. The crossing was first proposed as a necessary brake on traffic speed and to allow pedestrians to cross the road once traffic speeds had increased significantly. There was a two-year process of consultation and consideration during which the Council took account of the views of road users, pressure groups, local residents and its own officers.

Failed to consider impacts on local people

  1. Mrs C also says the Council failed to take account of impacts on local people. I will deal with these in turn.
  2. Mrs C says that the crossing, by stopping traffic outside her house, will be likely to cause increased pollution by causing cars to remain stationary while the lights change.
  3. Mrs C has not provided any evidence that this has happened. However, while I accept it is probably true that there will be some minimal increase in pollution at the crossing itself, the scheme as a whole was intended to reduce NO2 and PM2.5 levels. The crossing was meant to deal with other concerns caused by improved traffic flow. Overall, the Council considered the scheme would improve air quality.
  4. Mrs C also complained about light and noise pollution. The Council turned lights off on the crossing for several days while it dealt with her concerns in early 2020. But I have not seen any evidence that the noise or light pollution continue to be a problem for Mrs C or her tenants. Lighting, including that from zebra crossings, is part and parcel of town life.
  5. Mrs C also says that the crossing had a particular impact on one of her neighbours and the Council should have borne this in mind. The Council wrote to local houses and invited comments on the proposal. It considered all the comments it received. It is not required to do more than that. I do not find fault.
  6. Mrs C says that she was not consulted about the proposals personally. Nonetheless, she learned of them and objected to them. There was no fault and no injustice caused to her.

Discrimination

  1. Mrs C says she has been discriminated against because, while neighbours have been able to apply for dropped kerbs which allow parking in their front gardens, because her house is now beside the crossing, she cannot do so.
  2. While I appreciate Mrs C’s frustration, this is not discrimination. Discrimination is treating someone differently because of, say, gender, race, or religion. I have seen no evidence that the Council treated Mrs C any differently than it would have treated anyone else in her circumstances. I do not, therefore find fault.

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Final decision

  1. I have reached a decision and closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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