The Ombudsman's final decision:
Summary: Mrs B complains that the Council failed to take residents’ views into account when allowing the use of a local park by a funfair. The Ombudsman has found no fault in the way the Council considered this matter.
- Mrs B complains that the Council failed to take proper account of residents’ concerns and was wrong to authorise a funfair in a local park which caused damage to the park and nuisance to residents. She considers that the Council should apologise to residents and ensure that no further fairs are held on the site.
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)
- If we are satisfied with a council’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 have considered Mrs B’s written complaint and supporting papers and spoken with her. I have written to the Council and considered its response. I have taken account of information from the internet, including comments on residents’ groups’ social media pages. I have had regard to reports on a third-party complaint about Cabinet members who considered petitions opposing the fair. I have also sent Mrs B and the Council a draft decision and invited their comments.
What I found
Legal and administrative background
- The Council’s procedures for booking a park (or part thereof) are set out on its website. Applicants must submit an online book-a-park form and any additional documentation which the Council may require. This may include, for example: evidence of Public Liability Insurance; a risk assessment; a site plan; a contact list; an operations schedule; a noise action plan; an organisational structure; a security and stewarding plan; a traffic management plan. All agreements include a reparation/make good clause to ensure that any damage to land or facilities is to be paid for by event/activity organiser.
- A fee may be payable which varies according to the area and duration of booking and type of organisation.
- There is no formal requirement for the Council to consult the public on park bookings. However, the Events Team consults with the Park Service Manager, who will consult the area Parks Development Officer if necessary.
- The Council operates a Petitions Scheme. This sets out how the Council will act when it receives a petition and how it will respond. If accepted, a petition may be submitted to the full Council, which will then decide what action if any to take.
- Mrs B lives close to a park in a conservation area. She is a member of a residents’ group which has raised significant funds to improve the area, including planting and works to the park. There is a separate residents’ association which undertakes a similar role in respect of another nearby park.
- In January 2019, a fair operator submitted bookings for a range of locations across the city, as agreed with the officer co-ordinating such events. These included a proposal to book the park for a four-day funfair at the end of June. The booking would be for eight days, including setting up and taking down.
- The booking form referred to the provision of stewarding, toilet facilities, and litter collection. The fair operator saw no need for specific parking or traffic management measures.
- The officer asked the fair operator to liaise with the residents’ group, gave provisional approval and quoted a price. The residents group confirmed that the park was not in use on the proposed dates.
- In early February, the residents group raised objections to the use of the park for a fair. The officer responded to the group’s concerns and said that she and the fair operator had undertaken a site visit with the fair operator.
- Two residents’ groups submitted petitions against the use of the park. Their concerns included: the effect on the conservation area; the potential impact on new trees and grassed areas; possible parking problems; pollution from the generators; noise; and litter.
- The first petition, sponsored by the local ward member, was received in mid-March and presented to a meeting of full Council shortly after. Full Council resolved for the matter to be considered by the relevant Cabinet member, but it was too late for the agenda for the March Cabinet meeting. As there were no Cabinet meetings scheduled until July, officers asked for an urgent additional meeting in June to consider the matter. This was just prior to the event.
- In the meantime, the sponsoring ward member, and the responsible Cabinet member both met residents to discuss their concerns.
- Officers prepared a report responding to the petition for the June Cabinet meeting. The report set out residents’ concerns as expressed in the two petitions.
- In response, officers explained in the report that the fair operator was experienced and had operated fairs at several other sites with very positive results. The only damage had been to the ground, when conditions had become unfavourable, and this had been restored at no cost to the Council. There had been no littering problems. There was no evidence of previous tree damage but a tree protection methodology would be required (and was subsequently provided). Officers had viewed access arrangements. The distance from housing would be similar to other sites. It was accepted that there would be some noise, but operating hours would be strictly controlled. There had been no special parking arrangements for previous events in the park, and it was felt that the majority of attendants would walk or be dropped off. Officers recommended that the event proceed.
- The sponsoring ward member, and two petition organisers set out their concerns at the meeting, and the agenda item was discussed for over an hour. It appears that discussions became heated and there were a number of interruptions. In the event, the Cabinet member felt that there was no evidence to support residents’ concerns that the fair would cause problems which would warrant refusal.
- The fair proceeded at the end of June. Officers conducted an internal review meeting in September 2019. A meeting was then held in January 2020 between, officers, the sponsoring ward member, and representatives of the two residents’ groups to discuss steps that might be taken to allay residents’ concerns in the event of any future fairs.
- I have first considered whether the Council went through the correct processes in response to the booking and the subsequent petitions.
Booking procedure / consultation
- Mrs B considers that the Council did not take residents’ views into consideration in permitting the booking of the park for a funfair. She has raised concerns in particular in respect of parking and access and considers that concerns form a teacher at a local school about pollution and distribution were also ignored.
- I understand that residents may have wished to have been consulted in advance of the proposed booking. But there was no requirement to consult with residents as part of the park booking procedures, and I see nothing to suggest that the booking was not carried out in accordance with those procedures.
- As to the consideration of the petitions, the Council responded in line with its procedures by bringing this to the attention of the full Council, which then deferred the matter to the relevant Cabinet member to consider.
- The petition was not discussed at a Cabinet meeting until a week before the fair was due to be held. This was in part due to the pre-election purdah period and the fact that there were no meetings scheduled. The Council accepts that the meeting might have been held earlier, in view of residents’ concerns, and I appreciate that this delay may have resulted in some residents feeling that their concerns were not being heard. However, there is no deadline in the policy to consider petitions, and the meeting was held in time to cancel the fair, if that was felt to be appropriate. I cannot therefore conclude that this constitutes fault.
- I understand that Mrs B feels that residents’ views were ignored at the Cabinet meeting, and it is clearly the case that objectors did not get the outcome that they wished. But objectors’ concerns, including parking and access arrangements, and officers’ comments on those concerns were clearly set out in the report. Both petition organisers and the sponsoring councillor spoke at the meeting, members of the public were also able to attend, and a local school teacher was able to set out her concerns. The meeting minutes show that objectors’ concerns were discussed at length, and the responsible Cabinet member took into consideration a range of views and information both for and against permitting the fair to proceed. He concluded that there was insufficient evidence of likely problems to warrant refusal.
- I see nothing here to suggest that the matter was not properly considered or that residents’ views were ignored. I note that the Council has since met residents and signalled its intention to discuss further ahead of any future proposals.
- I have therefore gone on to consider if there is any evidence, following the fair, to suggest that there were significant errors or omissions in the way the Council considered matters.
- Mrs B says that the fair should not have been allowed because the access arrangements were inadequate. She says a bollard had to be removed at the proposed access point and then a second bollard removed at the access point eventually used to allow the fair lorries access. She says the lorries made an illegal right turn as they could not otherwise access the site. She says the fair lorries also drove through a hedge.
- The Council has explained that an officer had visited in advance with the fair provider to check access and it was felt that access arrangements were adequate. It appears that, in the event, the first access did not prove suitable so an alternative access was needed. However, it was then possible to gain entry through the second access.
- As to the use of no right-turn in order to use the second access, I note that the Police were able to manage traffic to allow the fair vehicles to turn, and it was open to the Police to take what action they considered appropriate. The Council has explained that the any traffic disruption was not long-lasting, and it would take up the issue of the no right turn with the fair operator. As the Council had assessed the access arrangements and it proved possible to access the site, I see nothing here to suggest that the Council was wrong to allow the fair to proceed
- As to the suggestion that lorries had to drive through a hedge, that statement seems to be inaccurate. The photographs provided show that lorries had to drive between two hedges and that their sides touched the hedges. A photograph in the local paper also shows an allegedly damaged hedge, but that does not appear persuasive. I accept that the entry point was tight, but I have seen nothing to suggest that the hedges were damaged or that the Council was wrong to conclude that the site was accessible.
Damage to trees and grass
- Mrs B says that residents had raised concerns about damage to the park. She says that there was damage to two trees (a malus and a silver birch) which had to be re-staked, and a third tree later died.
- The Council says it had previously removed stakes from two young trees as they were of sufficient age not to need them. It re-staked the malus which had suffered mower damage but did not re-stake the silver birch, which was stable, though officers subsequently felt that it would need to be replaced. It has no evidence that these trees were damaged by the fair. It also notes that all fair vehicles were parked outside the canopy line as recommended by the Tree Team.
- I have seen no conclusive evidence of any damage to trees by the fair. There was some short-term damage to the grass, and the Council asked the fair owner to fill in some wheel ruts with topsoil. But there is nothing to suggest any significant damage to the park, or that the Council should have had greater regard to this.
- Mrs B had referred to objections about parking problems. She has pointed to visitors parking on the grass verges under mature trees, that such parking is not allowed under park by-laws, and she considers that parking over the roots may cause long-term damage.
- The Council considered whether parking measures were necessary. It had not anticipated significant issues with parking. It expected most visitors to walk or be dropped off. It noted that there had not been parking problems with funfairs at other locations, and other events at the park had not caused parking problems.
- I see no fault here in the way the Council considered matters. The Council reached a considered view that the fair was unlikely to cause parking problems. I note also that there is a time-restricted parking bay on the road along the northwest side of park adjacent to the park and there is also unrestricted parking available on several side streets to the southwest and north of the park.
- The Council has explained that the great majority of the 2,000 to 3,000 attendees came on foot. However, there was some parking on the verges, though I note that residents refer to verge parking at other events such as the fun day and other local events. So it is not clear to me that most residents would regard the temporary use of the verges as causing inconvenience. I am unable to determine whether occasional parking under mature trees might cause damage.
- The Council has agreed in any event, for future events, to consider whether to put in place temporary parking restrictions, the use of tape / cones, and enforcement by the Police or enforcement officers.
- Residents had also raised concerns about possible air pollution from the fair’s diesel generators. Mrs B says that the local university took measurements. She says the readings within the fair itself were acceptable, but they exceeded limits at the roadside and she could smell fumes from her home some 200 metres away, though the Council contends that the pollution might be from the main road rather than the fair.
- There does not appear to be conclusive evidence of significant air pollution from the fair, and the Council has in any event agreed to monitor this in any future events. I see no fault here.
- Mrs B has raised concerns that the placing of advertising notices in a conservation area were a breach of planning control.
- The Council has explained that there was no requirement to seek planning permission for the notices, as these would be classed as permitted development (a blanket planning permission granted by the Government). I see no fault here.
- Mrs B says that residents raised concerns about a range of other matters including the size of the fair, noise, litter, traffic problems, and access to the park.
- It is clear that some residents were unhappy with the way in which the fair was approved and that the Council did not accept their views that the fair should be cancelled. It is also the case that some residents subsequently expressed concerns about parking, noise, and access to the park.
- However, the fair was reduced in size to fit the park. Most comments on social media were very supportive of the fair, saying that it was well-run, that staff were friendly, that noise was not a problem and all the litter was cleared up. Moreover, at the January 2020 meeting, the residents group representative agreed the fair was a success, though concerns remained about the sustainability of the site.
- I see nothing here to suggest that there were any significant flaws in the way the Council considered the suitability of the park for the fair.
- I have closed my investigation into Mrs B’s complaint because I have found no fault in the way the Council considered residents’ concerns about allowing the funfair in the park.
Investigator's decision on behalf of the Ombudsman