Decision : Not upheld
Decision date : 13 Dec 2021
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to apply the Local Transport Plan policy and properly consider allowing motorcycles to use bus lanes when proposing a Traffic Regulation Order. Further Mr X said the Council delayed a trial allowing motorcycles to use bus lanes on a highway causing motorcyclists prolonged delays and inconvenience. The Council says it has acted in line with the recommendations of its Scrutiny Board and considered all relevant information when deciding to issue a Traffic Regulation Order. It says the impact of the Covid-19 pandemic on its resources caused unavoidable delay to the trial use of bus lanes. We found the Council acted without fault.
- The complainant I refer to as Mr X, complains as a representative of a local branch of the Motorcycle Action Group (MAG). Mr X says the Council failed to set up without delay a proposed trial giving access for motorcyclists to bus lanes. Mr X says the Council failed to consult with the MAG as a statutory consultee.
- The failure to set up the trial and allow access to bus lanes under a Traffic Regulation Order imposed on the A647 Mr X says causes avoidable delay to his members. Mr X wants the Council to set a date for the start of the trial on the A65 and allow motorcycles access to bus lanes on the A647.
The Ombudsman’s role and powers
- 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)
- If 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)
- 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)
How I considered this complaint
- In considering this complaint I have:
- Contacted Mr X and read the information presented with his complaint;
- Put enquiries to the Council and reviewed its responses;
- Researched the relevant law, guidance, and policy.
What I found
- The West Yorkshire Combined Authority (WYCA) set up in 2014 sets the transport strategy for the area including Leeds. The Council as highway authority for the city fulfils the strategy and exercises statutory powers to issue Traffic Regulation Orders.
- In August 2017 the WYCA adopted the West Yorkshire Transport Strategy (2040) which has the status of the Local Transport Plan.
- This Local Transport Plan says it will balance the needs of cars and motorcycles with cyclists and pedestrians. The plan says there will be a phased programme of allowing motorcycles to use bus lanes ‘where possible’. (Policies 21 and 29 West Yorkshire Transport Strategy (2040)).
- The Road Traffic Act 1984 grants powers to councils to make a Traffic Regulation Order both experimental and permanent. The Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 as amended sets out the procedure for creating an Order. The Council is responsible for the delivery of the policies within the Local Transport Plan.
- Under Regulations 7 and 8 the Council must give publicity to its proposal to issue a Traffic Regulation Order (TRO) and consult with representative bodies. Regulation 18 imposes a duty on councils to ensure proper signage is in place before an order comes into force and to preserve them.
- Under Regulation 22 councils may make Experimental Traffic Regulation Orders (ETRO). Regulations 7 and 8 (imposing publicity and consultation duties) do not apply to ETROs. Under Regulation 6 councils should liaise with representative bodies as necessary.
- Between 23 May 2020 to 30 April 2021 amended regulations allowed for different forms of publicity for a proposed TRO. This simplified the process for making temporary TROs if connected with the Covid-19 pandemic. This allowed for substituting publication in a newspaper with online publication and use of social media. (Traffic Orders Procedure(Coronavirus)(Amendment)(England) Regulations 2020)
- Anyone may challenge the validity of an order in the courts under the RTA 1984. (Paragraphs 35 and 36, Part VI Schedule 9, Road Traffic Act 1984)
- Under the Council’s constitution its Scrutiny Boards do not decide issues but recommend action to those officers with relevant delegated authority and the Executive Member of the Council with responsibility for the subject area.
- In September 2019, as part of fulfilling the Local Transport Plan set by the WYCA the Council’s Scrutiny Board considered MAG’s proposal for allowing motorcycles to use bus lanes. The Scrutiny Board recommended that before adopting this suggestion and incurring the expense of the works needed to allow this use and in making the necessary TROs, the Council should conduct a trial. This the Scrutiny Board believed would allow the Council to gather information about the likely impact of bus lane use and whether it is possible to allow access.
- Mr X addressed the Scrutiny Board’s September 2019 meeting. The Council having adopted the Scrutiny Board’s recommendation says that at the same time it considered the need to make changes to the A647 for which it needed to make a TRO. The Council says it could not include motorcycle access to bus lanes in its A647 TRO because it had yet to complete the trial access to bus lanes.
Use of bus lanes on A647
- In June 2017 the Council approved developing a bus lane for the A647 and began its public consultation for the proposals during 2018 including engagement with local interest and community groups.
- The WYCA approved a scheme in February 2019 for the A647 and in October 2019 the Council gave authority for issuing a TRO.
- The Council published the proposed order in August 2020 for four weeks giving the public notice and directing them to copies of the documents on its website. Officers set up site notices as part of the publicity for the TRO. The Council says therefore it gave publicity to the proposed A647 TRO in line with the Regulations. It says it did not need to undertake wider publicity as allowed under the temporary Coronavirus Regulations. Although the Council listed MAG on its contact list the contact details did not include up-to-date details of Mr X’s involvement. Therefore, he did not receive notice of the A647 TRO. The Council has yet to complete the works needed to complete the TRO. However, with the A65 trial yet to take place it says it has no grounds on which it could revoke the TRO and begin again.
Trial use of bus lanes on A65
- In December 2019 MAG produced a report setting out proposals for a six-month trial for using bus lanes on part of the A65 from April to September 2020. The Council says between September 2019 and March 2020 it discussed possible trial sites with MAG and prepared for the trial. However, the Council says with the national lockdown due to the Covid-19 pandemic starting in March 2020 the Council had to give priority to work associated with the pandemic. The Council acting in line with the Department for Transport’s emergency guidance gave priority for this work over the trial.
- In September 2020 the Council gave an update to its Scrutiny Board confirming agreement in principle to try out motorcycle access to the bus lanes on part of the A65. The Council undertook consultation work between September 2020 and April 2021. This involved local councillors who had raised objections to the proposed trial. The Council put the opposition to the trial to the Scrutiny Board in June 2021. The Scrutiny Board decided to form a working group to keep members updated. In July 2021 the working group met to vote on proposals for a trial using the A65. The vote was split and so the Group deferred a decision to the next full meeting of the Scrutiny Board. In September 2021 the Scrutiny Board recommended the proposed trial should go ahead. Officers began work on progressing the A65 trial.
- The Council says it expects to consider a report proposing approval of a scheme shortly. It hopes to start work needed by the end of the financial year subject to the supply of the necessary signage and staff. The Covid-19 pandemic the Council says has created shortages of both.
- The Council says the trial will help deliver the aims of the Local Transport Policy. While in the Council’s view MAG does not meet the criteria for a statutory consultee the Council has added it to its mailing list so it will receive notice of future TROs.
- In response to Mr X and MAG’s concerns the Council has offered a quarterly meeting with a MAG representative. This will tell them of changes, progress with the trial and allow them to share the experience of MAG members.
Analysis – was there fault leading to an injustice?
- My role is to decide if the Council considered the exercise of its powers to make a TRO without fault having before it all relevant information.
- The Council publicised the A647 TRO in line with the Regulations and says it did not need to use the extra powers under the temporary Coronavirus Regulations. It had an email address for MAG and sent information to that address not knowing the contact details had changed. Further, the Council’s Scrutiny Board, and officer with delegated authority had decided the Council needed to undertake a trial of the use of bus lanes by motorcycles before adopting this district wide. In line with that decision, the Council could not include use of bus lanes by motorcycles in the A647 TRO. Therefore, any objections to the A647 TRO based on the absence of permission for motorcycles to use the bus lanes are unlikely to have changed the A647 TRO. I find the Council acted without fault in its consideration of the A647 TRO.
- Only the courts can decide the validity of a TRO and order its withdrawal. I do not have that power. If Mr X or MAG dispute the validity of the TRO, they have the right to challenge the validity of the Order in court. That alternative remedy means I cannot investigate that issue further or recommend the Council withdraws the TRO. It is open to the Council to amend or replace the TRO on completion and evaluation of the trial of motorcycle access to bus lanes.
- In response to my enquiries the Council says it had hoped to have completed the A65 trial by now. It says the impact of the Covid -19 pandemic on staff levels and other available resources, such as signage, delayed the trial. The lockdown affected traffic flows and so undertaking a trial now traffic levels are greater may more accurately reflect the likely impact of the proposals. Once local councillors raised concerns the Council had to address them. It invited the Working Group to seek to resolve those concerns. The Council remains committed to undertaking the trial to see if it is possible to allow motorcycle access to bus lanes. The Council set no timetable for conducting the trial. Having considered the impact of the Covid 19 pandemic and the impasse on the Working Group I find the Council has acted without significant delay in progressing the trial. To avoid the issue drifting it is open to the Council to set a timetable for completing the trial.
- In completing my investigation, I find the Council acted without fault.
Investigator's decision on behalf of the Ombudsman