Fortunately, Colchester Cycling Campaign has the strength in depth to be able to research, collate and present a good argument.
Our complaint went to Gavin Jones, chief executive of Essex County Council, on April 13, and he has promised a response in ten working days.
We're waiting to see what ECC's response will be before looking at whether and how to take the issue to the local government ombudsman.
In the meantime, thanks go to local councillors Anne Turrell, Dominic Graham, Martin Goss and Ben Locker, and Myland parish councillors, for their support. We might have crossed swords with Alan Lindsay, see below, but he has remained unfailingly polite throughout — a true gentleman.
FORMAL COMPLAINT TO ESSEX COUNTY COUNCIL CONCERNING MILE END ROAD SHARED CYCLEWAY/FOOTWAY, COLCHESTER, ESSEX
13 April 2016
Dear Sir or Madam,
Attached is a formal complaint relating to the Mile End Road shared cycleway/footway, which is at present under construction. We urge Essex County Council to halt work with immediate effect. Whether or not the work is stopped, this matter, including procedure, application of guidance and application of equality legislation, should be the subject of a full inquiry by an independent party and a report issued.
The complaint, below, is supported by Cycling UK, the national cycling charity; councillor Anne Turrell (LD, ECC); councillors Martin Goss, Dominic Graham (LD, Colchester Borough Council); Ben Locker (Con, CBC); Pete Hewitt, chairman of Myland Community Council and various residents of Mile End Road.
We look forward to hearing from you. Yours sincerely,
Paul Avison, vice chair, CCC
Will Bramhill, planning officer, CCC
The complaintECC has spent up to £750,000 on a scheme to convert a 1.2km-long footway into an unsegregated shared cycleway/footway. With the exception of the construction phase, the scheme fails in its stated aim of assisting economic generation. The path itself is not fit for purpose.
Our concerns cover the rationale and imposition of the scheme; the path’s design, including its unsuitability for utility cyclists; the increased potential for fatal and serious injuries, and the irresponsible use of taxpayers’ money.
We question the judgment and direction of ECC, Essex Highways, the South East Local Enterprise Partnership and Ringway Jacobs. Various people were directly involved with the scheme and/or copied into key correspondence:
• Cllr David Finch, leader of ECC
• Cllr Rodney Bass, ECC cabinet member for infrastructure
• Cllr Ray Gooding, ECC cycling champion
• Mr Paul Bird, ECC director for commissioning (retired, April 2016)
• Mr Alan Lindsay, ECC transport strategy and engagement manager
• Mr Chris Stevenson, ECC head of commissioning
• Mr Dominic Collins, Greater Essex Business Board, SELEP
• Mr Adam Bryan, interim director, SELEP
- The path is not suitable for use by utility cyclists — the very people such a scheme should be for. Mr Lindsay said the path is most likely to be used by a parent escorting a five-year-old child (Alan Lindsay, meeting convened by Myland Community Council)
- A leaflet promoting the scheme was entitled “Improving safety for cyclists and pedestrians”. The reverse is true, however, and accidents are more likely. The dangers are: collisions between pedestrians and cyclists (especially on the hill) and collisions between cyclists and cars (vehicles emerging from driveways, and car doors opening). Drivers will also expect on-road cyclists to be using the shared cycleway/footway, not knowing its unsuitability, and react to such cyclists accordingly; the narrowed road will also make it harder to overtake cyclists
- The apparent reluctance to follow guidance means that ECC is less likely to be successful in any legal action following any collision that leads to death or injury
- Taxpayers’ money — given by the Department for Transport under the Colchester Local Sustainable Transport Fund — has been wasted
- The initial idea was flawed
- Appraisal was poor
- The development of the scheme was hurried and opaque, especially when compared with schemes during Cycling Town (2009-11) in which ECC encouraged CCC’s involvement
- The “consultation” process reached too few people and was of limited scope
- ECC admitted that the scheme was pushed through to “save face” with the funder (Alan Lindsay, meeting convened by Myland Community Council)
- No data was collected to enable a “before and after” comparison
The procedure and design
- ECC appears to have disregarded aspects of the law and key guidance, meaning that the path is substandard
- ECC hasn’t kept a record of why it disregarded guidance and/or who authorised this (See section on Detail, below)
- The path wasn’t requested by anyone (FoI)
- No research was carried out before construction began (FoI)
- No research was carried out into the number of cyclists on the route and their average speeds (uphill/downhill) (FoI)
- Options other than an unsegregated shared cycleway/footway do not appear to have been
considered despite repeated requests and the fact that this is part of the Essex Cycling Strategy
- The “public consultation” was billed as an “information event” and was little more than an exhibition of the scheme that ECC had decided would be implemented. No options were presented and ECC verbally made clear that no alternative to a shared cycleway/footway would be considered.
- Mr Bass did not directly respond to CCC’s concerns
- Mr Gooding replied to emails when pressed but did not reply to an email to set a date for a site meeting
- Mrs Turrell asked to meet cabinet members over the proposal but her requests were declined.
- Other individuals were copied into CCC’s emails querying why guidance wasn’t being followed; they could and should have stepped in (and been seen to have stepped in) to question the scheme
- Mrs Turrell requested a copy of the business case for the scheme from SELEP to be told that (as of April 6) it has still to be published. SELEP also ignored all correspondence from CCC. These points together constitute a lack of public accountability, a lack of transparency and also raise questions over its role and its suitability to supervise a vast amount of government money (See Detail)
The law that has not been interpreted properly
- ECC complied with the Equality Act 2010 by completing an equality impact assessment (EqIA) on the overall project, which involves several schemes
- Under the Act, ECC has to be able to show that it has paid “due regard”. It seems likely that it has failed to apply its ongoing duty at a scheme level. This was shown when we asked Mr Lindsay to prove that ECC has paid “due regard” with respect to this scheme. He merely referred us to the top-level EqIA
The guidance that has not been applied
- ECC appears to have dispensed with the expert advice of its own safety auditor (November 2015) to switch to an on-road solution (See Detail)
- ECC hasn’t paid attention to its own cycling strategy (See Detail)
- ECC hasn’t paid attention to its own cycling design guide (See Detail)
- ECC hasn’t paid attention to Department for Transport Local Transport Note 1/12 (Mr Lindsay claims that this was considered but he cannot quote any section that would support the scheme as finally built) (See Detail)
- ECC hasn’t paid attention to Department for Transport Local Transport Note 2/08 (See Detail)
- ECC disregarded the advice of CCC (September 2015) to consider an on-road solution (See Detail)
1.0 Background1.1 Colchester Cycling Campaign has been lobbying for utility cycling infrastructure for more than 25 years. We were a key partner (with ECC and Colchester Borough Council) in the government- led Cycling Town project. We had a productive relationship with ECC until about 15 months ago when, for no discernible reason, the council’s approach to us changed.
1.2 Colchester is Britain’s fastest-growing town and the design and effectiveness of new transport infrastructure is of paramount importance. To avoid gridlock affecting the economy, and to improve public health, the little money that is available should be spent wisely on “modal shift” which is best encouraged by providing high quality provision for alternatives the car.
1.3 CCC favours Dutch/Danish-style infrastructure where motor traffic speeds and/or weight of traffic makes it preferable. Such provision needs to be high quality both to draw cyclists from the carriageway and to reduce danger; the infrastructure currently being installed in London (the north-south and east-west cycle superhighways, pictured left) is high quality. Transport minister Robert Goodwill acknowledged the need for high quality provision in the UK following a visit to Copenhagen (video)
1.4 The campaign has expressed concern over several schemes within ECC’s current projects either because of poor appraisal, lack of data, safety factors or because they will not encourage
cycling. We have expressed broad support for three schemes.
1.5 We heard about the Mile End Road shared cycleway/footway at an informal meeting in August 2015. We saw the initial plans at the end of September; these featured a shared use unsegregated foot/cycle route which ran on the western side of the road for 0.5km, and the eastern side for 0.7km. The “information event” was held in October. In February 2016 the road was marked by surveyors. A final scheme (it had been “tweaked” to run only on the western side of the road) was unveiled in March, a week before construction began. During the entire period we were highlighting the pointlessness and dangers of ECC’s proposals, and drawing officers’ attention to how they were ignoring guidance. From the start, CCC favoured a 20mph limit with light-touch traffic calming. Mile End Road as it exists is eminently suitable for cycling (low traffic levels and generally low speeds).
1.6 Our experience with Cycling Town enables us to compare the management of that scheme with the current scheme. During Cycling Town, DfT was insistent that the cycling community was involved and kept an eye on schemes as they were developed; SELEP has excluded CCC by ignoring our correspondence.
2.0 Government guidanceThe Department for Transport provides local authorities with a series of guidance notes on designing schemes for cyclists.
CCC comment: ECC and Ringway Jacobs do not appear to have taken sufficient notice of guidance. If guidance had been followed, it is likely that the current scheme would have been abandoned at an early stage and substituted by a scheme that would have benefited all cyclists. In an email, Mr Lindsay said his team had not recorded when it departed from guidance or who took the decision to do so. He claimed that ECC had followed LTN 1/12. When we asked for examples of which parts of the guidance ECC had followed, however, he was unable to provide any.
LTN 1/12 can be viewed at https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/9179/shared-use-routes-for-pedestrians-and-cyclists.pdf
2.1 Local Transport Note 1/12
Paragraph 1.3: “Shared use routes created through the conversion of footways or footpaths can be controversial. There are many such examples that have been implemented inappropriately and/or poorly designed, particularly in urban areas. It is essential for designers to understand that shared use is not the ‘easy fix’ it might appear to be.”
CCC comment: The warning is here, right at the front of the main national document on shared paths.
Paragraph 1.4: “The design of shared use routes requires careful consideration and is best carried out by someone experienced in planning and designing for pedestrians and cyclists. A poorly designed facility can make conditions worse for both user groups.”
CCC comment: We query the expertise of the team responsible for the design of the Mile End Road scheme (note the total unsuitability of that first “split” design). You would expect experienced designers to be aware both of guidance and the problems caused when insufficient attention is paid to guidance.
Paragraph 1.5: “Cycle route networks often include a mixture of on-carriageway and shared use routes. It might therefore be necessary to divide schemes into route sections to assess each one in its appropriate context for design purposes.”
CCC comment: We favoured a footway/cycleway scheme around the Station roundabout, with cyclists and pedestrians separated from traffic and from each other; our view was that Mile End Road would benefit from a 20mph limit and minor traffic calming, which would have been in accord with Para 1.5.
Paragraph 3.1: “The initial appraisal will help to establish the need for improved provision for cyclists and to identify the types of cyclist any improvements are aimed at. The first step is to consider the strategic requirement for cycling (including greater permeability) on an area-wide or corridor basis.”
CCC comment: There is no evidence of any such appraisal (FoI).
Paragraph 3.3: “Routes linking existing and proposed trip attractors/generators should offer good conditions for cycling. In general, improved provision should only be made where there is (or will be) a demand for cycle trips and where existing conditions are unsuitable, not simply because an opportunity exists to do so.”
CCC comment: Existing conditions were suitable for current use. Planning for a future increase in the number of cyclists should have involved considering all options for the route, not just a shared cycleway/footway.
Paragraph 1.8: “This LTN focuses on routes within built-up areas, where the predominant function of the route is for utility transport, and where use by pedestrians and/or cyclists is likely to be frequent. As such, it expresses a general preference for on-carriageway provision for cyclists over shared use. However, it is not meant to discourage shared use where it is appropriate.”
CCC comment: Note the “general preference”, an option that was not considered in this scheme (See FoI to Sam Turner).
Paragraph 1.14: “Disabled people and older people can be particularly affected by shared use routes. Ultimately, however, it will depend on the quality of the design.”
CCC comment: The design is poor and all pedestrians and cyclists using the facility will be “particularly affected”. If ECC had followed the procedure intended by equality legislation, this would have been noted and could have been resolved at a very early stage.
Paragraph 4.6: “The road network is the most basic and important cycling facility available. In general, cyclists need only be removed from the road where there is an overriding safety requirement that cannot be met by on-carriageway improvements, or where providing an off- carriageway cycle route is an end in its own right.”
CCC comment: There was no “overriding safety requirement”. Encouraging greater use of this route by cyclists could have been achieved with a 20mph limit; signing it as a cycle route which, in itself, could have reduced motor traffic.
Paragraph 4.7: “For cyclists, the potential disadvantages of leaving the carriageway include poor route continuity and increased potential for conflict with pedestrians (who may also be disadvantaged). There are also safety issues at side road crossings to consider.
LTN 2/08 can be viewed at https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/329150/ltn-2-08_Cycle_infrastructure_design.pdf
2.2 Local Transport Note 2/08
Paragraph 8.2.1 (design speed): “On commuter routes, cyclists usually want to be able to travel at speeds of between 12 mph and 20 mph, preferably without having to lose momentum. Frequent road crossings, tight corner radii, the presence of other users and restricted width or forward visibility all affect the speed with which cyclists can travel and the effort required. Cyclists tend not to favour cycle routes that frequently require them to adjust their speed or stop.”
CCC comment: Our judgment is that any speed over walking pace (4mph) would be dangers on the path as designed and built.
Paragraph 8.2.2: A design speed of 20 mph is preferred for offroad routes intended predominantly for utility cycling. This provides a margin of safety for most cyclists. The average speed of cyclists on a level surface is around 12 mph.
CCC comment: No account appears to have taken of the danger of the steep gradient.
Paragraph 8.2.3 Where cyclists share a route with pedestrians, a lower design speed may be required. Routes with design speeds significantly below 20 mph are unlikely to be attractive to regular commuter cyclists, and it may be necessary to ensure there is an alternative on carriageway route for this user category.
CCC comment: Reducing the design speed reduces a path’s attractiveness. In the case of Mile End Road, this makes the council’s scheme pointless.
3.0 The safety auditA stage two safety audit was carried out in November 2015. The auditor was an ECC employee trained in assessing highways safety. The audit was made on the original scheme (shared cycleway/ footway split in two). Putting the path on to one side of the road mitigated some issues but not those flagged up with the overall scheme. (Note that the audit checks the scheme against road safety issues but not its compliance with design guidance.)
|People pulling out of a private driveway on the western side of Mile End Road|
CCC comment: The auditor several times makes a key recommendation of an investigation into on-carriageway provision. We query whether this was given full consideration by ECC.
3.2 The auditor notes the gradient of Mile End Road and says: “This could lead to high cyclist speeds, which could result in loss-of-control type collisions and collisions with pedestrians and vehicles crossing the shared use path.”
CCC comment: Again the recommendation is for an on-carriageway facility — or speed reducing measures for cyclists (but see LTN 2/08, above, on how such measures lead cyclists to stay on the carriageway).
3.3 The auditor notes “inadequate width resulting in conflict between shared path users”.
CCC comment: In the final scheme, path width falls below 3m, the very minimum recommended for a path on open land, let alone between garden walls and parked cars. In at least one location it is 2.6m (on the hill outside No 61),
3.4 The need to comply with design standards is mentioned throughout the audit.
CCC comment: ECC has disregarded design standards when it has suited its intention to push
through with its scheme.
3.5 The audit mentions problems with “the level difference caused by various dropped accesses” which could lead to cyclists losing control.
CCC comment: The danger of different levels “causing loss of control” would appear to discount safe use of the shared cycleway/footway even by “by a five-year-old child” (see previous reference).
4.1 Paragraph 2.13: “Standard roads carrying light volumes of traffic travelling at low speeds are perhaps more of a natural resource for cyclists than purpose-built cycle tracks which take many years to plan, fund and implement.”
4.0 ECC Cycling Strategy
Paragraph 4.2 SE1, “In practice use of suitable standard roads assisted by the introduction of traffic management, speed reduction and junction improvements can help cyclists as much as more obvious cycle infrastructure.”
Paragraph 4.2 SE5, “... only introduce joint cycleway/footway facilities after all other options have been evaluated and rejected.”
CCC comment: These paragraphs show that a road such as Mile End Road can be considered part of a cycling network and they point to the need to prioritise spending on schemes where cycling conditions are poor.
4.2 Paragraph 2.28: “Cycle route design [should] avoid problem junctions and the proximity to private drives.”
CCC comment: This scheme suffers from a high level of off-road parking and private driveways.
4.3 Paragraph 3.3 ‘Objective 1: To improve facilities for cyclists; These include traffic management measures that reduce the speed and/or the volume of traffic ...”
CCC comment: Clearly these are options that should have been explored given the difficulties exposed by the final design.
5.0 Equality Act 2010ECC has a legal duty to prove that it has shown due regard to “people with protected characteristics” — which includes women, children, the elderly and the disabled (note that Mile End Road has a care home for head-injured people at No 81, on the hill). A summary of the Equality Act is given here: http://www.thompsons.law.co.uk/ltext/127-case-law-public-sector- equality-duty.htm
Note, too, the Brown principles from case law: http://bit.ly/1S6LAFZ, especially in relation to considering guidance and keeping accurate records. More case law is given here: http://bit.ly/ 1SuiiBk
5.1 An equality impact assessment is a tool to demonstrate compliance with the public sector equality duty. The SELEP project is covered by an umbrella EqIA but individual schemes do not have their own EqIAs. This is accepted practice in ECC. It should be noted, however, that EqIA guidelines state that “where an EqIA relates to a continuing project, it must be reviewed and updated at each stage of the decision”.
Rowena Macaulay, a disability campaigner, points out:
“EqIAs should be completed as intended, fully and meaningfully, in accordance with guidance provided by the EHRC as a means of meeting the Public Sector Equality Duty. Doing the relevant research and providing argument and evidence for decisions taken is key to any serious completion of an EqIA, and involving/consulting with those people likely to be affected by proposed changes, or with the local groups representing them (in addition to collecting data etc) is [...] central to that process.”
Ms Macaulay adds:
“Even though ECC acknowledge the SELEP project as a ‘new decision’ and one relating to ‘transport schemes contained within Essex County Council’s Local Transport Plan (2015-21)’ the EqIA refers to a consultation with relevant user groups conducted prior to 2011 — at least five years out of date .”
Hilary Reed, another campaigner, adds:
“An EqIA on each scheme would be the best way of ensuring that ECC can prove it has shown due regard. A desktop EqIA is not sufficient. Evidence of live scheme consultation — evidence gathering — is needed, which requires a community development approach.”
Ms Reed also queries whether the safety auditor is trained how to assess/embrace the public sector equality duty and whether that forms part of their remit. Whichever way ECC decides to apply equality law, officers must be able to show that they have paid “due regard” in each and every scheme. Mr Lindsay, the officer responsible for the Mile End Road scheme, merely pointed us to the umbrella EqIA three times.
5.2 We requested clarification of ECC’s approach to the Equality Act and Paul Turner, ECC corporate lawyer, replied:
“In the highways context this [the Equality Act] can be discharged by a high level equality impact assessment on a programme and a detailed safety design which ensures that any redesigned highway is safe to use for all users.
“I understand that shared cycle facilities are to be constructed to standards identified within the ECC Cycle Strategy, ECC Cycle Design Guide, LTN 1/12 and Sustrans guidance to ensure that the facility can be shared safely with other users. If the scheme meets safety
standards then it would not be likely to have a disproportionate adverse impact on highway users with one or more protected characteristics.”
CCC comment: As seen in this complaint, ECC has departed from guidance and appears not to have taken proper note of the key recommendation of the safety audit. Bearing in mind that ECC has apparently disregarded guidance, we wonder how this sits with Mr Turner’s interpretation of equality law, and whether he still considers that ECC has shown “due regard”.
6.0 The Essex Cycling Design Guide6.1 Section 2.2 (Planning new routes) stresses the importance of assessing existing cycling conditions before deciding on appropriate measures and says: “Even if these procedures are not fully adopted, it will be important to address the issues that the guidelines raise.” It adds: “Early consultation with local cyclists is recommended wherever possible.”
CCC comment: Essex appears to have disregarded its own guidance in this scheme.
6.2 Section 2.4 (Providing for cyclists in traffic and highway schemes) says: “At the very least, new schemes should not make conditions worse for cyclists.”
CCC comment: This scheme will make conditions worse for all cyclists, both on the new shared cycleway/footway and on the carriageway. Cyclists can continue to use a carriageway even if a cycle facility is provided (R v Cadden). Carriageway cyclists will be affected because road lanes will be narrower, meaning that drivers may become frustrated if they are unable to overtake easily.
|Safety advert on back of a London bus|
CCC comment: Car doors opening will be a hazard to cyclists. The fact that Essex is designing infrastructure that incorporates this danger is at odds with local authorities such as Kensington and Chelsea, which is spending money on bus advertisements telling cyclists to give parked cars at least 1m space.
6.4 Section 7.2 refers to LTN 1/12 and stresses: “Recent Department for Transport guidance has emphasised that shared use should only be used if there is no alternative.”
Section 7.3 says: “The conversion of footpaths and footways to permit bicycles [...] should be confined to specific links and locations where clear benefits can be derived. In such situations it is vital that the benefits to the cyclist are balanced against the increased risk and inconvenience to pedestrians.”
7.1 Liability: As part of opposing the Mile End Road shared cycleway/footway, we drew ECC’s attention to a warning from the Urban Design group about the legal liability of local authorities that insist on maintaining/installing poor or outdated provision of infrastructure. We are mentioning this here for the record.
7.0 Other relevant details
7.2 Refuse collection: At the meeting hosted by Myland Community Council, Mr Lindsay’s attention was drawn to the problems posed by rubbish collection each Friday. Colchester has an excellent scheme where waste is collected in 1) a black plastic bag for nonrecyclables; 2) clear plastic bags for paper, plastics and clothing; 3) a caddy for food waste; 4) a plastic box for glass and cans. This is left at the roadside and gathered in large piles by refuse collectors before being taken away by lorry. It was felt that this would drastically narrow the width of the path. Mr Lindsay said it was not a traffic planner’s job to consider waste collection.