Cheltenham Borough Council (20 000 721)

Category : Transport and highways > Parking and other penalties

Decision : Upheld

Decision date : 26 Nov 2020

The Ombudsman's final decision:

Summary: Miss X complains the Council failed to follow due process when making a Traffic Regulation Order. She says it failed to consider her complaint, keep her informed and give her enough notice of its implementation. She says as a result her parking charges will increase, and she lost her right to challenge the Order in court. The Ombudsman found no fault in the way the Council made the Order, but there was fault in the amount of notice it gave Miss X when it was implemented and how it handled her complaint. The Council agreed to apologise to Miss X. It will also remind its officers to follow its complaints procedure and the notification requirements for new orders.

The complaint

  1. The complainant, whom I shall refer to as Miss X, complains the Council failed to follow due process when making a Traffic Regulation Order (TRO) to change its charges in its carparks. She says it failed to:
    • consider her complaint;
    • keep her informed about its consultation; and
    • tell her about its implementation of the TRO.
  2. Miss X says, as a result, she experienced distress, her parking costs have increased, and she did not have the opportunity to appeal the TRO.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. 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

  1. As part of this investigation:
    • I considered the complaint made by Miss X and the Council’s responses;
    • I discussed the complaint with Miss X over the telephone;
    • I considered the Council’s responses to my enquiries; and
    • I sent Miss X and the Council a copy of my draft decision and took their comments into account prior to issuing a decision.

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What I found

Traffic Regulation Orders

  1. To introduce changes to car parking charges, a Council must make a traffic regulation order (TRO) in accordance with the Regulations. (Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996)
  2. The Regulations set out procedures for consultation and dealing with objections to a proposal before a council makes a TRO.
  3. In summary, to begin the formal process a council must:
    • publish a ‘notice of proposals’ in a local newspaper;
    • make documents about the proposal available for public inspection;
    • inform statutory consultees, including the police; and
    • give other publicity to the proposal the council considers is appropriate.
  4. A Council must then:
    • allow any person to object to the making of the Order with 21 days.
    • Consider all objection duly made.
  5. A council must publish a notice within 14 days of making a TRO, give adequate publicity to the TRO and write to any objectors outlining the reasons for going ahead with the proposal.
  6. The notice must also advise there is a right to apply to the High Court within 6 weeks of the date of the TRO. This can be on the basis that:
  • the council does not have powers to make the order; or
  • the council has not complied with the relevant Act or regulations.

What happened

  1. In 2019 the Council proposed a variation to its Off Street Parking Order (the Order). This included an increase in the parking charges and removed business parking permit discounts for its car parks.
  2. The Council published its proposed Order in a local newspaper, informed statutory consultees and made the documents available on its website. It then allowed a 21-day consultation period for any person to comment on the Order.
  3. Miss X has a business next to a car park affected by the Order. She was unhappy with the proposal as it removed business discount permits and would therefore increase her cost of parking. Miss X said she was not aware of the consultation and so did not raise a formal objection. However, she complained to the Council before the end of the consultation period. She asked it to continue discounts for businesses to park in the car park or to provide her with a discounted street parking permit. Miss X also asked her local councillor to raise her concerns.
  4. The Council considered Miss X’s concerns and discussed this with her local Councillors. However, Miss X said she did not receive a response to her complaint. Nor did the Council register her complaint as an objection to its proposal or tell her how to make a formal objection.
  5. The Council arranged a meeting for its councillors to consider the comments it had received from the consultation, which included objections to the removal of business discounts. This led to some changes to the proposed Order, but not to the parts that Miss X had asked for. The Council approved the Order in September 2019.
  6. In February 2020, the Council implemented the Order. It published a notice giving any person the right to challenge the validity of the Order or its content. It said no person challenged the Order.
  7. Five weeks later, the Council wrote Miss X to give notice of the Order. It said it would start charging her parking costs in line with the Order by the end of the month. It also told Miss X about her right to challenge the validity or content of the Order in High Court within 6 weeks of the Council’s notice.
  8. Miss X complained to the Council. She said she did not hear back from the Council following her complaint in 2019 until the Order was implemented in 2020. She questioned the cost of parking and asked for a business owner discount. She also questioned why she had not been offered a street parking permit.
  9. In its responses the Council told Miss X it had followed the required procedures to implement the Order. It explained the cost of parking and the tickets available for its car park. But it refused to provide Miss X with the discount she wanted. The Council then attempted to support Miss X to obtain a street parking permit from the County Council. However, this was unsuccessful as she did not meet the requirements for a permit.
  10. Miss X remains unhappy with the Council’s decision and its consultation process. She said the Council did not consider her complaint, nor keep her informed about the consultation. She also says it gave her the implementation notice late. Miss X complained to the Ombudsman.

Analysis

Court remedy

  1. Miss X complained the Council failed to follow the formal procedures in its making of the Order. Such matters give Miss X the right to challenge the validity of the Order in High Court. However, we must consider if it is reasonable for Miss X to go to Court.
  2. Miss X had six weeks from the implementation of the Order to bring the matter to the Court’s attention. But because the Council was late to tell her it had implemented the Order, she only had one week to do so. I do not find it reasonable to expect Miss X to start a court action with only one weeks’ notice.
  3. Only the Court can change the validity of the Order. But we can decide if the Council has acted with fault in how it followed the procedures to implement the Order.

Did the Council follow procedures?

  1. The Council’s website and the information it has provided to me shows the consultation process it followed before approving the Order. The Council advertised its proposal in a local newspaper, placed notices in its carparks, informed statutory consultees, the Police, and made the documents available on its website. It then asked its councillors to consider the objections it had received and made its decision. I have not seen evidence of fault by the Council in how it handled this part of the consultation process.
  2. However, Miss X complained to the Council before the consultation period ended. Although, the evidence shows the Council did consider her complaint. It failed to respond to her complaint until after the Order was implemented. This is fault.
  3. In addition, because the main part of her complaint related to the same matters as the consultation, the Council should have registered her complaint as a formal objection or informed her how to raise an objection to the proposed Order. This is fault.
  4. The consultation documents and the Council’s decision shows it considered objections from other residents. Some of the objections raised the same concerns that Miss X complained about. But it decided not to provide discounted business permits. I am therefore satisfied the Council considered the impact of removing business discounts before making its decision. And so, I cannot criticise the merits of its decision.
  5. In addition, the Regulations do not require the Council to keep individual objectors informed about its consultation. And so, even if the Council had registered her objection, it was not at fault for not doing so.
  6. Miss X also complained the Council did not give her notice of the Order until five weeks after it was implemented. Because the Council did not register her complaint as a formal objection, it failed to give Miss X notice within two weeks of implementing the Order. She was therefore not told about her right to challenge the Order in High Court as required by the Regulations. This is fault.

Did the fault cause an injustice?

  1. Miss X says her injustice is the increased cost of parking. However, the issue where I have found fault did not cause the increased parking costs. Nor did Miss X have additional parking costs due to the Council’s fault because it allowed Miss X free parking for over 6 weeks after it implemented the order.
  2. However, the Council’s failure to respond to Miss X’s complaint, register her complaint as an objection or advise her how to make an objection did cause her the distress for not knowing the outcome and a loss of trust in the Council’s handling of the matter.
  3. In addition, the fault did cause Miss X a loss of opportunity to bring the matter to the High Court, which she says caused distress. I cannot say if Miss X would have done so, but I am satisfied the Council’s fault caused Miss X some avoidable distress.

Agreed action

  1. I considered our internal guidance on remedies.
  2. Within one month of the final decision, the Council has agreed to send Miss X a written apology for its delay in responding to her complaint and its delay in notifying her of the implementation of the Order.
  3. The Council will also, within three months of the final decision:
    • Provide evidence it has reminded relevant officers of the need to ensure complaints are responded to in a timely manner; and
    • Ensure notifications are sent to all objectors when implementing new Traffic Regulation Orders in future.

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Final decision

  1. I have completed my investigation with a finding of fault which caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman

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