Summary: Mr X complained the Council refused to issue him with a parking permit despite having done so for three years. The Council failed to provide information about restrictions attached to his development and Mr X was entitled to rely on this information. The Council has agreed to remedy Mr X’s injustice.

The complaint

1. Mr X complained the Council refused to issue him with a parking permit despite having done so for three years. He said the Council told him the permits were wrongly issued as he lives in a property that is not eligible for parking permits. Mr X said the Council did not make him aware of this when he bought the property.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have considered Mr X’s complaint and the Council’s response.
5. I have also considered the Council’s response to our enquiries.
6. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

The law

Local land charges

7. Guidance says local land charges are generally financial charges or restrictions on the use of land. They affect whoever owns the land and so there is an obligation that they are registered, to alert purchasers to their existence.
8. If a local land charge is not registered, it will still affect a purchaser in just the same way as it affected the original owner. However, if a purchaser makes an official or personal search before they purchase, they will generally be entitled to compensation for the loss they suffer in consequence of the failure of the search to reveal a local land charge that was in existence at the time that the search was made.

Planning

9. Planning guidance states that informative notes on a decision notice allow the local planning authority to draw an applicant’s attention to other relevant matters. Informative notes do not carry any legal weight and cannot be used in lieu of planning conditions or a legal obligation to try and ensure adequate means of control for planning purposes.

What happened

10. Mr X bought his flat in January 2016. He applied to the Council and received a parking permit in February 2016. He continued to receive a permit when he applied in 2017 and 2018.
11. In June 2018, the Council wrote to Mr X. It said the Council should not have issued the resident parking permit he had recently received. This was because his address was classed as a resident Permit Restricted Development (PRD).
12. The Council went on to explain that PRDs are not eligible for residents and visitors permits. This was because the Council granted planning permission for these properties on the basis the building is a ‘residents permit restricted’ development. It said this is in line with the government’s planning policy guidelines to promote more sustainable alternative modes of transport to the private car to reduce traffic congestion and pollution.
13. It said the Council would allow Mr X to use the residential permit he had received until it expired. However, the Council confirmed it would not issue further permits for this or any other vehicle at this address.
14. Mr X complained to the Council, stating that he needed the car for his job. He said he would not have bought the flat if he had been aware the building was a PRD.
15. The Council responded to Mr X’s complaint. It said that it was the fault of his solicitor for failing to identify the PRD during his searches when Mr X bought the flat. Mr X’s solicitor said the local land charge search made no reference to the PRD.
16. I have seen the local land charges search schedule for Mr X’s property provided by the Council in May 2013. Under ‘Traffic Schemes; residents parking controls’, the Council has answered ‘no’. In the report, the Council stated, ‘we have inspected all relevant original documentation, statutory registers, public documents, committee reports and other information held by use’.

Planning decision

17. The Council approved the planning application for the conversion of the first floor of an office block into flats in 2005. The decision notice includes three planning conditions. Beneath these are four informative notes. Informative number 6 states ‘the relevant traffic order will impose a restriction making residential occupiers of this building ineligible for residents parking permits in the surrounding controlled parking zones’.
18. Mr X’s solicitor argued the Council did not register this restriction as a local land charge and therefore it did not appear during his searches. In response to our enquiries, the Council confirmed that PRDs were not registered as local land charges in the past. It said the restriction was clear on the decision notice and if the solicitor had obtained hard copies rather than checking online, he would have seen this.
19. During our enquiries, we asked the Council about the restriction being listed as an informative note rather than a condition on the planning decision. The Council said historically it was common for councils to include restrictions under informative notes. It stressed this does not detract from what the intentions were; it was quite clear that permits would not be issued to residents. The Council said it cannot retrospectively apply a condition or S106 to a planning decision.

My findings

20. When Mr X bought his flat in 2016, he should have been made aware that the property was a PRD. The Council say the information was there on the planning decision notice but Mr X’s solicitor failed to identify it.
21. Because the intention for a permit restriction was an informative note, rather than a condition, the Council’s system did not transfer the information over as a local land charge.
22. I have seen the result of the local land charges search, provide by the Council. It made no reference to the permit restriction. Mr X and his solicitor were entitled to rely on this information.
23. The Council’s online system for applying for a permit, allowed Mr X to apply and receive a parking permit for three years. This is a fault in the system which should automatically refuse permit applications for addresses identified as a PRD.

Conclusion

24. The Council was at fault for not applying the intention of the planning decision’s informative note to its local land charge processes.
25. This resulted in the permit restriction not being identified as a local land charge.
26. Mr X was entitled to rely on the local land charge search results when buying his property.
27. The same fault led to Mr X being able to apply for and receive a permit for three years.
28. The fault meant that Mr X had a reasonable expectation that he would be entitled to a permit, and would continue to be entitled to one, when he purchased his property in 2016.
29. The fault resulted in Mr X receiving a permit for three years, when he should not have been able to apply for one. This in itself is not an injustice.
30. However, once the Council identified its error and wrote to Mr X to inform him that he would not be able to apply for a permit in the future, the injustice arose.
31. Mr X has suffered from the stress and uncertainty of not knowing where he could park his car (that he needs for work).

Update

32. In response to my draft decision, Mr X informed me that he moved out of the flat on 4 August 2019. Therefore, my proposed remedy for the Council to issue him with a free permit for a year would be of no use to him.
33. I have amended Mr X’s personal remedy to reflect the cost of an annual permit which is £79. Whilst he was only without a permit for 6 months, during this time, Mr X paid for on street parking near his flat and experienced the stress and inconvenience of frequently moving his car to avoid parking charges. Therefore, I consider £79 to go some way in remedying Mr X’s injustice.

Agreed action

34. Within four weeks of my final decision the Council has agreed to:
• apologise to Mr X; and
• pay Mr X £79 (the equivalent to the cost of an annual parking permit) to recognise the injustice he experienced as a result of the Council’s error.
35. Within three months of my final decision the Council has agreed to:
• update its processes. This will allow the information contained in informative notes on planning decisions to be transferred across to local land charges.
36. This will ensure the Council provides the public with correct information when purchasing similar properties subject to permit restrictions.
37. The Council has agreed to use its discretion in continuing to issue parking permits to those living in Mr X’s building who currently or have previously been in receipt of permits. The Council will continue to do so until existing permit holders move away from the building or fail to renew their permits.
38. The Council does not need to issue permits to any new residents in Mr X’s building or to those who were not previously in receipt of a permit.

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Final decision

39. I uphold Mr X’s complaint. The Council was at fault for not applying the intention of the planning decision’s informative note to its local land charge processes.

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Investigator's decision on behalf of the Ombudsman