The Ombudsman's final decision
Summary: Ms B complains about the Council’s decision to make changes that would increase traffic on her road. She says this will increase pollution and noise and cause flooding. The Ombudsman does not find fault in how the Council reached its decision.
The complaint
The complainant, who I refer to as Ms B, complains the Council approved a scheme that would divert traffic from another main road, onto the road on which she lives. Ms B says this will only shift the problem of air pollution from one part of the city to another. She complains the Council did not properly consult residents on the scheme and based its calculations about pollution on inaccurate data. Ms B says the scheme will mean lorries passing within a very short distance of her home, which will cause flooding from spray. She says the Council has declined to consider funding double glazing to mitigate the impact, or to purchase her property as part of the compulsory purchase scheme.
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I considered the information Ms B provided alongside documentation directly provided by the Council, and that publicly available on its website. I sent a copy of my draft decision to Ms B and the Council for their comments before making a final decision.
Background
In March 2019 the Department for Environment, Food and Rural Affairs (“DEFRA”), directed the Council to implement a clean air zone (“CAZ”) in the city by 2023. This would involve charging people to drive in the city. It did so because pollution levels on one road in the city had levels of Nitrogen Dioxide (“NO2”) that exceeded legal limits.
In February and March 2019, the Council held a consultation with three drop-in events and online surveys. The Council says the consultation received press coverage and it publicised this through social media channels and direct contact with stakeholder groups.
The Council took the view that introducing a CAZ would disproportionately affect lower income households. This is because it would introduce charges for older, more polluting cars. It therefore drafted an alternative proposal which it called the Local Air Quality Action Plan (“LAQAP”). The plan included widening the section of road on which Ms B lives and introducing a second lane of traffic. The Council said this would allow traffic to use an alternative route and reduce levels of pollution to within the legal limits.
The Council submitted the plan to DEFRA in September 2019. In February 2020 DEFRA confirmed it was satisfied for the Council to proceed with the LAQAP instead of a CAZ. It then issued a new direction to the Council that it must complete the LAQAP.
Between March and May 2020, the Council held three online consultation events. It says the events were planned to be in person, but it had to cancel these due to lockdown restrictions.
Between November and December 2021, the Council completed a public consultation on the details of the scheme. As part of the consultation it: Developed a website page on its engagement platform, with an online survey Arranged three drop-in sessions and advertised an online meeting. The online meeting was cancelled due to lack of engagement Delivered hard copy newsletters to a large number of residents most likely to be impacted by the scheme Posted details about the scheme and dates of drop-in sessions on social media Issued a news release to local and regional media outlets The Council completed a consultation report and a document outlining the themes and responses it received from residents.
In March 2022 Ms B made a formal complaint to the Council about the way it had reached its decision to go ahead with the LAQAP. She raised several issues, including the following: The Council was removing parking the properties had benefited from for 35 years The Council based its projections of pollution on her road on measurements taken in 2020 that were not accurate The scheme would only move pollution from the other road to this road, making it the most polluted road in the city and significantly impacting on the health of residents The Council did not consult residents on whether they wanted the LAQAP instead of a CAZ Traffic including lorries would pass three metres from Ms B’s front door, causing damage and flooding from the spray, with only flower boxes to protect the properties The Council refused to compensate Ms B by paying for double glazing to help reduce traffic noise The Council responded in April 2020. It said the width of the pavement was not untypical for pavements across the city and it was not unusual in urban areas for traffic to pass close to buildings. It said the area was in a zone with high probability of flooding. It said drainage would be improved as part of the works and there would be flood alleviation works further upstream. It said it would provide parking on a nearby site which was available full time. It said the Council did not have unlimited funds and could not offer to pay for double glazing. It said the impact of the changes on NO2 levels had been modelled by specialists and the results checked by DEFRA. It showed there would be no exceedance of legal limits on Ms B’s road. It said the Council had a legal obligation to complete the scheme.
Ms B escalated her complaint to stage two of the complaint procedure. She again questioned the Council’s modelling of NO2 based on 2020 levels. She said it was not normal for listed buildings to have a highway with lorries so close to front doors. She said the Council had not directly notified residents of its consultations in 2019 and 2020 therefore residents were not aware of the scheme or the consultation. The Council did not uphold the complaint.
In July 2022 the Council wrote to residents who used the parking layby to say that works would begin in August 2022. It said this would remove the parking bays. While works were ongoing, residents could park in an alternative location nearby. The Council said that when the works were complete it would provide long term parking in another location nearby.
Findings
I have not found fault.
The Council has been directed by the government to implement the LAQAP. This means the Council has a legal duty to complete the scheme. I cannot make findings that would remove this duty.
I could not question the monitoring or data on which the Council has based its NO2 modelling. This modelling has been completed by specialists and in conjunction with government departments. DEFRA was satisfied with the details of the scheme and directed the Council to go ahead with it.
Ms B has raised concerns about the way the Council carried out its consultations in 2019 and 2020. I would not be able to find fault on this point. The Council publicised the consultation through local media including radio and a local newspaper, and online. It is important for councils to consider whether people can access certain types of publicity and social media alone is unlikely to be adequate. However, in this case I would not be able to find the Council had a duty to send direct notification by post to all residents when considering if a CAZ or the LAQAP was preferable. I would also not be able to find that, had the Council sent postal correspondence to all residents, it would have made a different decision. The LAQAP has now been directed by government, and again, I could not make any findings that would remove this direction.
The Council sent leaflets to a large number of residents when consulting on the more advanced details of the scheme. I can see from the Council’s consultation report and supporting documents that it considered the issues Ms B and other residents raised about the impact of the works. It made minor changes to the works based on this feedback but remained of the view the LAQAP was the best option and decided to continue with the scheme, in line with the direction. I cannot question the merits of the Council’s decision and have not found fault with the consultation process.
The removal of parking to widen the road is part of the LAQAP. The Council has set out alternative parking that it will provide. It has also detailed the drainage improvement works it will complete to reduce the risk of flooding. I cannot question the merits of its decision on what level of drainage works are necessary to deal with issues of flooding. If damage results to Ms B’s property from any aspect of the works this would be a civil matter, and I understand the contractor completing the works has offered to place vibration boxes in Ms B's home to monitor whether damage is likely.
The Council has decided not to fund double glazing for Ms B. There is not a legal duty on the Council to fund this and again I would not be able to criticise the merits of its decision. I also do not find fault with the Council not considering Ms B’s home for a compulsory purchase order (“CPO”). The purpose of the CPO is where the Council needs to take control of an area of land to complete works on that land or make the works possible. The Council has not identified that it is necessary to carry out any works on the land Ms B’s home is situated on and so her home does not fall within the CPO area.
Ms B has raised significant concerns about the impact on her health from increased traffic resulting from the scheme. However, I cannot make findings about what impact the LAQAP will have on residents’ health. The Council has produced the scheme for the purpose of reducing pollution in other areas to within legal limits. It has calculated that pollution in Ms B’s area will not rise above legal limits as a result. As already outlined, I cannot question the conclusions specialists responsible for that modelling have reached. The modelling was completed in conjunction with government departments and the government has directed the scheme to go ahead. Again, I cannot make findings that would alter this direction.
Investigator's decision on behalf of the Ombudsman