Summary: Miss D complains on behalf of a number residents about the Council’s decision to implement parking restrictions for only certain hours rather than all day. We have found no fault by the Council.

The complaint

1. Miss D complains on behalf of a number residents about the process by which the Council created a controlled parking zone and its decision to impose parking restrictions for only certain hours rather than all day. In particular she complains the process was flawed because the Council:
• ignored the results of first consultation
• ignored views and asked misleading questions in second consultation
• did not properly advertise the formal consultation and
• has not treated all roads in same manner.
2. Miss D says as a result, residents are having to pay for parking permits that only benefit businesses and out of area shoppers.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Miss D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Local Authorities Traffic Order Regulations 1996
• The Traffic Orders Procedure (Coronavirus)(Amendment) Regulations 2020 (in place from 23 May 2020 to 30 April 2021)
• Traffic regulation orders: guidance on the traffic orders procedure (Coronavirus), Department for Transport, June 2020
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. Residents are able to challenge traffic regulation orders in the High Court and this may have been a reasonable course of action given the number of people opposed to the scheme. Our guidance says if a complaint is that a council did not follow the correct procedures, we must consider whether to exercise discretion to investigate. This relates to the formal procedures for making the order, not to any prior actions such as informal consultation. I have therefore exercised my discretion to investigate Miss D’s complaint, as it relates largely to the informal consultation stage.
8. Miss D 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

Relevant law, policy and guidance

Residents’ parking schemes

9. When a council wants to create a residents’ parking scheme (also known as a Controlled Parking Zone (CPZ)) it must make a Traffic Regulation Order (TRO). There is a legal process the council has to follow in order to introduce a TRO, set out in the Road Traffic Regulation Act 1984 (as amended) and the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996. The process is:
• Statutory consultation with the emergency services and other public bodies.
• Advertisement of the proposal by formal notice (“Notice of Intention”) in the local press and displaying notices in the roads affected. Relevant documents must be made available for inspection. Councils must also “take such other steps as it may consider appropriate” to ensure adequate publicity. This may include directly notifying people the council thinks may be affected, but this is not a requirement.
• Consideration of all objections received during the 21-day consultation period following the notice.
• Decision whether to proceed as advertised, make modifications to, or abandon the proposal altogether. In Watford, formal decisions on making TROs are delegated to the Head of Transportation.
• Publication of a “Notice of Making” in the local press describing the TRO.
• The notice must also advise there is a right to apply to the High Court within six weeks of the date of the TRO. This can be on the basis that:
1. the council does not have powers to make the order; or
2. the council has not complied with the relevant Act or regulations.
• Within the next 14 days the council must give adequate publicity to the TRO and write to any objectors outlining the reasons for going ahead with the proposal.
• The TRO is then legally signed and “sealed”. The Council has two years from the date of the advertisement before the order needs to be sealed.

Impact of COVID-19

10. In response to the coronavirus pandemic, the Government published amended Regulations that came into force on 23 May 2020. These provided alternative publicity, inspection and on-site posting requirements for TROs.
11. The new Regulations said where, for reasons connected to coronavirus such as office closures, it was not reasonably practicable for councils to comply with the requirement to advertise notices in local print newspapers or make documents available for inspection, councils must use such alternative publicity arrangements as they considered appropriate. This may include online publication, or leaflet drops, or providing alternative means for inspection of documents.

Informal consultation

12. Councils will usually carry out some informal consultation in the area before deciding whether to go through the formal process of making a TRO. If they do so, they should take the results into account in determining the proposals, but the consultation is not a referendum.
13. Watford Borough Council does not have a formal CPZ policy. The decision to consider a scheme usually comes as a result of complaints by local residents and local councillors about parking. The Council will always carry out informal consultation with affected residents and businesses and will have regard to majority views on whether or not to implement a scheme.

What happened

2019 informal consultation

14. In July 2019, following a request from councillors, the Council consulted with residents in the area where Miss D lives about the possible introduction of a CPZ. A questionnaire was sent to 3,671 households. It asked whether residents supported some form of parking restrictions and if so, whether these should be in place all day, part day (i.e. for up to two hours during a working day), or for extended hours until 10pm.
15. The letter said responses would be presented to councillors and “used in conjunction with other elements of the review, such as vehicle occupancy surveys and inventory surveys to possibly develop detailed parking proposals for further consultations with residents. Should there be a consensus for a parking scheme further consultations will be carried out to ascertain suitable hours of restriction.”
16. The Council received 828 responses from residents. Of these 565 (68%) were in favour of introducing parking controls, 292 wanted all day controls, 213 wanted extended hours and 198 wanted part day. The Council wrote to residents on 25 October with the results of the consultation.
17. The Council carried out an informal consultation with local businesses which ended on 4 November. It received 42 responses. Of these 21 businesses wanted part day parking restrictions, 5 “split day” (i.e. restrictions in the morning and then in the evening) and 5 all day.
18. Officers discussed the results with councillors and decided to propose split day parking restrictions. The Council says this was to address residents’ desire to prevent all day commuter parking and evening parking, whilst mitigating the concerns of local businesses about a lack of parking for customers during the day. The Council also decided to split the area into two (Areas 1 and 2), as residents of one area had slightly different preferences for parking control than the other.

2020 informal consultation

19. The Council wrote to over 2,000 residents of Area 1 (where Miss D lives) on 17 February 2020 to consult on its proposal to introduce parking restrictions.
20. The letter set out the proposed hours that parking restrictions would apply as being Monday to Saturday from 8am – 10am and from 7pm – 10pm. It explained this was to reduce commuter parking and control parking in the late evenings and to have “the minimal impact on local businesses”. The letter described the advantages and disadvantages of a CPZ and gave the proposed charges for permits. The attached questionnaire said:

“Do you support the introduction of parking restrictions which operates Mondays to Saturdays 8am to 10am and 7pm to 10pm in your area? A. YES or B. NO”

“Do you have any further comments on controlled parking, including suggestions for alternative hours of parking restrictions which you may prefer?”

21. The Council wrote to Area 2 residents on 19 February proposing restrictions Monday to Friday 10am – noon.
22. The Council received 587 responses from Area 1 residents. Of these 397 (67.6%) said “Yes” to the proposed parking restrictions and 187 said “No”. For Area 2 45.2% replied “Yes” and 52.7% replied “No”.
23. Officers and councillors met on 9 April to discuss the results of the consultation. The Council decided that as a majority in Area 1 had responded “Yes” the proposal should progress to a formal TRO process, with the exception of two roads who had not responded by a majority in favour of restrictions. The Council felt these roads could be removed from the proposed CPZ without compromising the integrity of the scheme. The Council decided not to go ahead with a CPZ in Area 2. It advised residents of the outcome of the consultation in May 2020.

Formal TRO process

24. The Head of Transportation authorised publication of a TRO “Notice of Intent” for the Area 1 CPZ on 22 July. The TRO notice was published on 7 August in the local press. The Council also posted it on lampposts in affected streets and sent it to affected properties. Due to the difficulty of making documents available for public inspection in its offices because of the coronavirus pandemic, the draft TRO, with plan and statement of reasons was published on the Council’s website or could be requested.
25. The Council received 49 objections to the proposed TRO. It prepared a report considering the objections. The report noted that 24 residents had said the evening hours were not sufficient and that parking restrictions should operate from 5pm or 6pm, rather than 7pm. The Council considered the proposed hours were the most suitable compromise to prevent commuter parking and alternative shift parking during night time hours, whilst enabling local businesses’ customers to park during the day. The report said obtaining a consensus on operating hours would not be straightforward. It recommended proceeding with the original proposed hours as this was voted for by a majority of residents during the informal consultation in 2020. It agreed to review the hours within six months of the CPZ’s implementation.
26. Some residents of the two roads that had been left out of the proposed CPZ were concerned about this. The Council therefore agreed to a pre and post implementation parking stress survey to assess the impact of the CPZ on neighbouring streets.
27. After consideration of the objections, the Council decided to implement the TRO as advertised. It published this decision on its website on 20 October and notified all objectors on 22 October.
28. The Council wrote to all affected residents on 26 November to advise the CPZ would be implemented from 11 January 2021. The “Notice of Making” was published on 11 December 2020.
29. The TRO became operational on 11 January 2021, however, the Council suspended enforcement of all CPZ's during the COVID-19 lockdown until 29 March. Residents were advised of enforcement being suspended and then recommenced through a letter of 4 January and press releases.

Miss D’s complaint

30. Miss D and other residents contacted the Council during October and November 2020 with concerns about the proposed CPZ. As a result, the Council met with them on 16 November. It was agreed the Managing Director would investigate their concerns and the Council sent a formal response to the complaint on 19 November. This said:
1. Although a small majority of residents wanted all day parking restrictions, most businesses did not. This was not referred to in the Council’s 25 October 2019 letter which only fed back the residents’ survey results. But the letter had said a separate survey had been undertaken with businesses and there would be further consultation.
2. The proposed split day scheme was to address the concerns regarding commuter parking whilst retaining flexibility for customers of local businesses. The Council accepted this was not clearly explained in the February 2020 informal consultation. It said in future second stage informal consultations, it would set out the rationale for any proposed scheme.
3. The second informal consultation letter had asked residents to suggest alternative hours if they wished, but the May 2020 letter giving feedback on the consultation did not say how any suggested alternative hours had been considered. There had been “a plethora” of suggested alternative timings. The Council therefore did not consider there was a consensus which meant it should change its proposed hours.
4. The Council accepted that some residents may have ticked “Yes” to split hours but then suggested different hours to those proposed. In future informal consultations, the comments box would be separated from the question.
5. The Council had publicised the TRO in line with the Regulations.
6. The Council decided to remove two roads from the scheme following the second consultation but not a third road, even though it also voted no. This was because removing the other road would affect the integrity of the whole scheme. This should have been made clearer to residents in the feedback.
7. Whilst the Council accepted it could have given clearer explanations, it did not consider that the informal process was so flawed as to require the process to be rerun.
31. Miss D remained dissatisfied and complained to the Ombudsman. A number of other residents also approached us about the same matter. It was agreed with them we would investigate Miss D’s complaint.
32. Miss D said residents were unhappy about the split hours and wanted the parking restrictions to be all day. She said they were having to pay for permits that would only benefit businesses and out of area shoppers; residents would still not be able to park when returning home from work between 4pm and 6pm.

My findings

33. It is not the Ombudsman’s role to say what parking restrictions should be put in place. That is for the Council. My role is to consider whether there was any administrative fault in the way the Council reached its decision.
34. Miss D complains the Council ignored the results of the first informal consultation in 2019 because the majority of residents had supported all day parking restrictions.
35. She is concerned the Council manipulated the responses to the second consultation on the proposed split hours. She says 118 residents voted “Yes” but were actually voting “No” to the hours and were unable to vote that they wanted all day parking restrictions.
36. She also says the Council wrongly consulted with residents who were not affected by the CPZ, i.e. those on the roads which were excluded from the scheme and residents who have private parking.
37. There is no legal obligation for a council to consult with residents, but councils will generally carry out informal consultation before deciding whether to go through the formal process of creating a TRO. Any informal consultation is not binding. Councils should take into account the responses but they are not required to implement what the majority of residents have requested. They must also take other factors into account, such as the responses from businesses.
38. I note the Council has accepted its consultations could have been clearer, but it gave details of the roads affected, provided a plan, explained the operation of the scheme, stated what the proposed hours were and asked people whether to say yes or no to them.
39. Residents had already voted yes to all day restrictions in response to the first consultation. The second was a new consultation on split hours. Residents may have disagreed with the Council’s decision to consult on split hours, but this does not mean the consultation was flawed. The intention was that residents who did not agree with the proposed hours should vote no. Miss D is concerned the responses were miscalculated but, as I have said above, the consultation is not a binding referendum.
40. The Council was aware of the survey responses and considered them when it decided to propose a split hours scheme. It was entitled to decide that a compromise would best suit the needs of residents and local businesses. For the second consultation it was up to the Council to determine which area should be consulted. There is no fault in its decision to include two roads it later decided to exclude from the scheme.
41. In reaching its decision to proceed with the TRO the Council had before it all the consultation responses and the suggestions for alternative hours. It was entitled to decide that there was a lack of consensus on alternative hours and to proceed with a modified proposal, excluding the two roads. There is no evidence of fault in the way it made this decision.
42. Residents had a further opportunity to object when the TRO notice was published in August 2020. Miss D says the notice was not publicised properly but there is no evidence of this and indeed 49 people objected.
43. The evidence shows the Council followed the correct legal process to introduce the TRO. It sent letters to affected residents and placed notices on its website and in a local newspaper. It considered all objections received. It was entitled to disagree with those comments and to decide to progress with the TRO. I note that it in fact agreed to review the hours in response to residents’ concerns, which is not evidence that it ignored their views.
44. Miss D and other residents disagree with the Council’s decision to implement a split hours CPZ, but there is no evidence fault in the way the Council made this decision. As such, the Ombudsman cannot challenge it.
45. Miss D says the Council did not explain why the operating hours could not be changed and would not confirm the legal date of operation of the TRO. The Council must implement the TRO as described in the “Notice of Making", which was published on 11 December, once it has been legally sealed. The TRO was sealed on 4 January 2021 and became operational on 11 January. Parking enforcement was suspended due to the coronavirus lockdown, but this does not mean the TRO was not in operation.

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Final decision

46. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman