Summary: Ms X complains the Council failed to respond to and investigate her complaints about a resident trading cars from their property causing a nuisance by parking cars on the road. We found fault by the Council as it failed to respond to Ms X’s formal complaints about the matter. But this fault has not caused a significant injustice to Ms X. The Council is now taking the action Ms X was seeking so we are completing our investigation.

The complaint

1. I have called the complainant Ms X. She complains the Council failed to respond to and investigate her complaints about a nearby resident trading cars from their property. Ms X says the trader parks cars for sale on the road and surrounding streets reducing the on-street parking available and creating a bottleneck for traffic on Ms X’s road. This causes a nuisance and difficulties for Ms and other residents finding on-street parking spaces.
2. Ms X wants the Council to take enforcement action to stop the resident from running the car trading business so the area will no longer suffer the inconvenience and traffic issues it is causing.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or

we cannot achieve the outcome someone wants.

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

4. 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

5. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

7. The Clean Neighbourhoods and Environment Act 2005 (the Act) deals with ‘nuisance vehicles’ and provides that a person is guilty of an offence if at any time:
1. He leaves two or more motor vehicles parked within 500 metres of each other on a road or roads where they are exposed or advertised for sale. Or
2. He causes two or more motor vehicles to be so left.

Key events leading to the complaint

8. Ms X reported the alleged car trading to the Council in August 2021. Ms X referred to the trader’s website, parking cars on her road causing a bottleneck and parking cars on neighbouring roads. An enforcement officer visited the site and found no evidence of cars for sale. There was no answer at the trader’s property and the officer left a voicemail message on the telephone number given on the website. The officer found none of the cars advertised for sale on the website parked on the road and closed the investigation.
9. Ms X asked for an update in September 2021 and reported the trader leaving untaxed cars on the road. The Council referred the issue to its Trading Standards service to investigate whether the trader was running a business from a residential property. The Trading Standards service responded it would record the trader as a car seller from home and send advice on trading law. But it was not a trading standards matter and referred Ms X back to the Council’s Street Trading service.
10. An officer contacted Ms X to apologise she had been back and forth between services. The officer explained there were difficulties for the Council in investigating the matter. This was because officers would need to walk up and down the roads referred to (a distance of seven miles) and check each vehicle to see if it was listed for sale on the website. Alternatively, officers would need to check the tax and MOT status of every vehicle parked on the four roads. The officer explained the Council did not have officers to do this because of a temporary staff shortage in Enforcement.
11. The officer also said the Council had carried out several visits to the site, but a DVLA registered keeper search showed the vehicles at auction with no registered keeper listed. The officer explained if the Council cannot link a vehicle to a business, it cannot enforce against illegal street trading. The Council could try to deal with it as an abandoned vehicle and place a notice on it. But when a tow truck comes to the site it often finds vehicles have been moved and replaced by new ones.
12. Ms X remained unhappy with the response and complained to the Council in November 2021 at stage 1 of its complaint procedure. The Housing and Regeneration Complaints Team told Ms X Trading Standards were not investigating the matter and referred her to Street Services Complaints. Ms X did not receive a response within the Council’s response time of 10 days from Street Services so complained at stage 2. Ms X did not receive a response and so made a complaint to us.
13. The Council accepts it missed responding to Ms X’s complaint due to changing its complaints procedure to an online portal. It intended to respond to Ms X through the portal but postponed the go-live date and missed responding to Ms X. In response to our notification of the complaint an enforcement officer visited the site in February 2022 but found none of the vehicles listed for sale on the trader’s website.
14. The officer visited the site again in March 2022 and located a vehicle from the website parked on Ms X’s road, taxed with a valid MOT. The officer went to the trader’s property but found no one there. The officer found no registered keeper listed for the car and arranged to have it towed away under the Act to remove nuisance vehicles.
15. In May 2022 the Council’s towing contractor reported a member of the public threatened the tow truck driver who was trying to tow the vehicle away. So, the car remained in place and the officer arranged to visit with the Police and tow truck to resolve matters.
16. The Council removed two vehicles on the visit. The officer received telephone calls from four different people claiming to own the vehicles towed away. None of the people lived at the trader’s address. The officer visited the site again and found many vehicles parked there the day before had been moved. A few weeks later a person came forward to claim both vehicles using certificates of insurance. The person did not live in the area and the Council served them with two fixed penalty notices for unlicensed street trading and a community protection order.

The Council’s comments on the complaint

17. The Council confirms that depending on the business a person can run it from their home with little intervention from the Council. In this case the trader is allegedly using the highway as a showroom which is not permitted under the Act. The Council’s policy is a business displaying items or services for sale on the public highway or on private land within seven metres of the public highway requires a street trading licence. But the case of the car trader is not straightforward as it is not obvious which vehicles are being offered for sale and who they are linked to.
18. Most of the Council’s street trading occurs by identifiable businesses trading in front of their own stores. So, its policy for enforcing in those circumstances is not applicable to the car trader. The Council must try to identify the business owner of the vehicles being sold, or the resident of the property address and prohibit the person from using the public highway in this way.
19. The Council confirms calls to the telephone number listed on the website are not answered and voicemails not returned. No one answers the door when an officer visits the property. And letters posted to the address have not been responded to. The Council reported the address to its Business Rates service, who are investigating commercial activity from the address.
20. The issue for the Council’s Street Trading service is being able to locate the individual vehicles listed on the website. The Council says it has been an continuing challenge. It recently towed away two vehicles which resulted in communication with several people. But none of them lived at the car trader’s address. The Council issued a fixed penalty notice and a community protection warning to the person who claimed the vehicles. The Council does not know if this is the car trader. It will serve the keeper of the vehicles with a community protection notice if the two vehicles return to the area and are advertised for sale again.
21. The Council confirms that other than double yellow lines placed near to junctions and residential dropped kerbs there are no other highway restrictions on Ms X’s road. The road is not in a controlled parking zone (CPZ) so will not have regular parking enforcement officer visits. The Council says the road is wide enough to have vehicles parking on both sides of the carriageway without hindering the flow of traffic. A parking enforcement officer inspected the entire road in May 2022 and found the area clear of illegally parked vehicles or obstructions.

My assessment

22. Ms X complained the Council failed to respond to her complaints in November 2021. The Council explained it was because it changed its complaints procedure to an online portal and Ms X’s complaint was missed. This was fault by the Council as it was aware of receiving the complaint.
23. I appreciate the frustration this caused to Ms X in wanting to pursue her concerns about the car trader. But I do not consider it caused Ms X a significant injustice to warrant us pursuing the matter further. This is because the evidence shows officers had been in contact with Ms X before she submitted her complaint. The officers explained the Council’s position in investigating the alleged car trading, the difficulties in doing so and it had been unable to locate any of the vehicles. The Council also had a temporary shortage of enforcement officers to carry out the investigation Ms X requested.
24. However, in response to Ms X’s concerns the Council has now carried out further investigations into the alleged car trading which is an outcome Ms X was seeking. The Council has been able to take some action to remove some cars which is another outcome Ms X was seeking.
25. The matter is still ongoing, and the Council will consider further action if it has evidence the cars are being returned to the area. Because of this I consider it unlikely that further investigation by us will lead to a different outcome for Ms X. The Council has explained the difficulties in establishing robust evidence to take more definite action against the trader. While Ms X may wish the Council to take further action against the trader it will be for the Council to be satisfied it has sufficient evidence to do so.
26. The Council confirms that while Ms X may have concerns cars parked on either side of the road cause a bottleneck for traffic, it considers the road wide enough to accommodate this. And it will not hinder the flow of traffic.

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Final decision

27. I am completing my investigation. There was fault by the Council as it failed to respond to Ms X’s formal complaint about the car trader operating in her road. But this fault has not caused a significant injustice to Ms X. The Council is now taking the action she was seeking as an outcome.

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Investigator's decision on behalf of the Ombudsman