Derbyshire County Council (21 016 469)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 05 Jun 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to approve a walking and cycling route in his area which includes a proposal to permanently close a road near to him. Mr X said the Council failed to properly consult about the scheme. The Council failed to deliver consultation leaflets to Mr X and a number of other residents as part of the consultation. However, this did not cause Mr X a significant injustice because he was already aware of the scheme and had the opportunity to provide his comments at the relevant time. The proposed road closure is subject to a Traffic Regulation Order and Mr X and others will have the opportunity to submit further representations as part of that process.

The complaint

  1. Mr X complains about the Council’s decision to approve a proposed scheme to extend a walking and cycling route in his area. Mr X says the Council failed to adequately consult with him. Mr X is also unhappy about a proposed road closure as part of the scheme which he says will cause him inconvenience.

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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 question whether an organisation’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)
  3. If we are satisfied with an organisation’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 Mr X about his complaint and considered information he provided.
  2. I considered the Council’s response to my enquiry letter.
  3. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Traffic regulation orders (TRO)

  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) to restrict or prohibit the use of the highway network.
  2. The Regulations set out the formal procedure an authority should follow. This includes allowing a person to object in writing within 21 days of the publication of a proposal and the requirement to consider any objections made against the order.
  3. The Act gives a person the right to challenge a TRO in court. The application must be made within six weeks.

What happened

  1. In 2020/21 the government awarded the Council funding to create a cycling and walking route (the scheme) in its area. Department for Transport (DfE) guidance required the Council to undertake appropriate consultation with local residents and relevant stakeholders by publishing plans and undertaking appropriate surveys. The guidance specified there is not a ‘veto’ on the scheme. The guidance said the DfT would not scrutinise consultation plans but just needed to know appropriate consultation had happened.
  2. The Council proposed a route which would extend an existing cycling route. The proposed route included a new two-lane cycleway highway along a main road, through a park and via a minor road which as part of the plans the Council intended to permanently close to traffic.
  3. In early 2021 the Council commissioned a Community Engagement Report and decided to run a consultation on the scheme which was on-line due to the ongoing COVID-19 pandemic and national lockdowns in place at the time. The consultation ran during March 2021 and was publicised on the Council’s website.
  4. The Council said anybody could take part in the consultation using a web-based online portal. The Council also publicised the proposed scheme using social media outlets and via media releases such as radio and local newspapers. The Council also surveyed various user groups.
  5. Along with the methods outlined above the Council also decided to commission a third party to deliver leaflets to around 4000 residents, including Mr X, on 117 streets which are the nearest and most affected by the scheme to alert them of the consultation. The Council said it intended to put the proposal before its committee in October 2021 to decide whether to approve the scheme.
  6. Mr X complained to the Council in March 2021. His substantive complaint was around the proposed permanent closure of a road as part of the scheme. Mr X said this would cause significant congestion and cause him inconvenience. Mr X said the Council had failed to consider alternative locations.
  7. The Council responded to Mr X in April 2021. It said it intended to wait until the consultation had fully concluded to gauge views on the proposed road closure and the route as a whole
  8. Records show the Council received various comments of support and objections. The Council also considered a number of comments after the end of the consultation. Some of the Council’s considerations included:
    • Alternative routes were considered but not viable due to funding constraints and issues around land ownership
    • Plans on monitoring vehicle speed
    • Concerns around the design of the road and the removal of pedestrian crossings
    • Road layout and lighting
    • Concerns around how residents would access their driveways
    • Consultation with the Chamber of Commerce around assertions that the proposed scheme would impact local business.
    • The permanent closure of the minor road would make a safer space for pedestrians and cyclists at the expense of a small number of vehicles.
  9. In October 2021 the Council’s cabinet considered the scheme. The Community Engagement Report outlined the outcome of the consultation including consideration of objections and concerns. The report stated the Council received 1,182 responses with 71% in favour of the scheme. The committee meeting minutes stated the consultation had demonstrated overall broad support for the proposed route. It therefore decided to approve the scheme.
  10. In February 2022 Mr X complained to us, mainly about the proposed road closure as part of the scheme. He also said a petition had been signed by over 700 residents against the proposed road closure. Mr X further complained about how the Council had carried out the consultation. He said that neither he, or others on his street received a notification about consultation of the scheme and therefore the final results were flawed.

My findings

  1. Records show the Council decided to carry out consultation on the proposed scheme in early 2021 in line with DfT guidance. The consultation was not a referendum and the results were not binding. The Council used a number of methods to publicise the scheme and engage the public in the consultation including the leaflet drop. The Council’s consultation was in line with the requirements set out by the DfT.
  2. As part of the consultation the Council decided to carry out a leaflet drop. Mr X said he did not receive the leaflet and neither did anyone else on his street. The third party commissioned to deliver the leaflets said all the leaflets were delivered on the same day however it was only able to provide partial tracking details. On balance, given the lack of tracking and the number of residents who reported not receiving the leaflet it is likely the third party failed to deliver the leaflet to Mr X as planned. That is fault. However, I do not find this caused Mr X a significant injustice. Records show Mr X was already aware of the scheme and the proposed road closure at or during the consultation stage because that is when he raised his initial complaint.
  3. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how much a complainant disagrees with the decision. The DfT guidance sets out that any local objection is not a ‘veto’ and therefore the results are not binding. The Council carried out a consultation and considered relevant comments and concerns. I cannot say the consultation process was overall fundamentally flawed and it met the requirements set out in the DfT guidance. It was for the Council to decide how to use the results and it decided to approve the scheme.
  4. The proposed road closure subject to Mr X’s substantive concerns is subject to a TRO which the Council has not yet progressed. As part of this Mr X and other residents will have the opportunity to submit representations. Therefore, I have not considered this any further.

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Final decision

  1. I completed my investigation. I found fault but that fault did not cause Mr X a significant injustice.

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Investigator's decision on behalf of the Ombudsman

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