Summary: Mr X complained about the Council’s failure to ensure adequate on-site car parking on a housing development near his home. Mr X says that because of this, he and other residents find it more difficult to find parking spaces on the streets near their homes. We did not investigate this complaint further as we are unlikely to find fault or an injustice we can remedy.

The complaint

1. Mr X complained on behalf of a residents’ association about the Council’s failure to ensure adequate parking spaces on a large housing development.
2. Mr X says because of this, some of the residents of the development park their cars on the streets in the local area, where car parking space is already difficult to find.

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The Ombudsman’s role and powers

3. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it.
12. A party to a section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.

Tree Preservation Orders

13. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
14. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Written consent for works on or removal of trees can be provided as part of a planning permission. If planning permission is granted, landscaping conditions may be used to require replacement of trees that were once protected by TPOs.
15. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Background

16. Mr X complains about planning decisions that were made several years ago. The Council approved the application subject to conditions, one of which controlled car parking places. There was also a section 106 agreement, part of which required a payment to provide improvements for road safety. Mr X says that a number of spaces were removed between the grant of planning permission and the discharge of a planning condition that controlled parking management on the site.
17. Mr X believes the Council’s planning decisions are connected to an increase in road traffic accidents caused by an increase in on-street parking and unlawful/inconsiderate parking.
18. Mr X also complains that protected trees were removed and not replaced.

Parking

19. The local plan policy relating to parking was aimed at reducing reliance on cars and encouraging more sustainable forms of transport. The policy was designed to set maximum limits on car parking spaces.
20. More recently a housing association that owned some of the properties on the development, gave up the spaces it was allocated under the parking layout plans approved by planning condition. The private company that managed the site, reallocated these spaces.
21. The residents’ association complained that the reallocation was in breach of the planning condition and caused a shortfall in parking spaces. They said because of this, even more pressure had been put on residents living in streets around the new development.
22. A planning enforcement officer considered the complaint and decided the condition was technically in breach. However, the parking spaces were still available, and it was never the Council’s intention to ensure that every resident of the development had on-site parking. The Council decided that enforcement action was not justified because it could not demonstrate sufficient harm that should be remedied.

Trees

23. A number of trees were protected by TPOs before the original planning decision was made. Some were damaged and the Council’s Tree Officer recommended consent to their removal. The Council approved the application subject to a landscaping condition requiring replanting.
24. A few years after permission was granted the Council received complaints that the trees had not been replaced. The Council says a planning enforcement officer visited the site and found that replacement trees were smaller than expected because of lack of watering, but further enforcement action was not justified.

My findings

25. Before we start or continue an investigation, we need evidence to show the complainant has been caused an injustice we can remedy. I do not think it is likely further investigation would lead to a remedy or other meaningful outcome for Mr X and the other individuals he represents, and my reasons are as follows:
• The original planning decision was made several years ago, beyond our 12‑month time limit. This was a large development and any concerns there may be about the process by which the planning decision was made could and should have been brought to our attention sooner.
• The complaint and enforcement investigation about landscaping/tree replacement was also made beyond our 12-month time limit. However, councils are entitled to agree to the removal of trees protected by TPOs and impose conditions requiring replanting. A significant time has passed since the Council made its last enforcement decision on this matter but if Mr X has ongoing concerns about the wellbeing of replacement trees, he can raise them with the Council’s enforcement officers. Whether further action is possible or desirable at some point in the future will be a matter for the Council to decide.
• The planning enforcement decision about on-site parking is within our time limit and is the focus of Mr X’s complaint. The process we expect for a planning enforcement decision is as follows. The Council should:
1. consider the allegation against its enforcement powers;
2. carry out a proportionate investigation to allow it to make a decision; and
3. if a breach of planning control is found, the Council should decide whether it should take enforcement action. In making this decision, it should consider the harm caused to the public by the breach.

The Council has followed this process and so it is unlikely we would find fault.

• Even if we were to find some fault in the process, it is unlikely we would be able to provide a remedy to Mr X or others. Individuals may park their cars on the public highway, providing they do so lawfully. Unless a residents’ parking zone scheme is in force, residents have no more rights than others to park on the streets where they live.
• While the housing association gave up its parking spaces, these were reallocated and so available for use. Mr X sent photo which he says shows visitor spaces are often empty. However, even if there was clear evidence of fault in the way the Council made its enforcement decision about on-site parking spaces, we could not know with any satisfactory degree of certainty how this directly affected parking on the public highway or show an injustice was caused to Mr X or others.
• For some time, central and local government policy has been aimed at discouraging reliance on private car use and encouraging more sustainable forms of transport. We cannot say it is an injustice that housing development in sustainable locations results in fewer car parking spaces.
• Mr X believes the Council’s actions caused an increase on on-street parking in the area and this is directly linked to serious traffic accidents. Mr X does not represent any individual claiming to be caused a financial harm or personal injury, but in any event, we are not a court and cannot determine causes or liability for traffic accidents.

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Final decision

26. I ended my investigation, as further investigation is unlikely to result in a finding of fault or a meaningful outcome for the complainant or others he represents.

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Investigator's decision on behalf of the Ombudsman