Summary: The Ombudsman found no fault by the Council on Mr P’s complaint about its refusal to renew his resident parking permit despite issuing one to him for the last 12 years. We cannot criticise the Council for withdrawing permits when it never intended him to receive one because his flat is in a ‘car free’ development. It gave him enough warning of its intention to refuse to renew his permit. For 12 years, Mr P benefited from receiving a permit to which he was not entitled.

The complaint

1. Mr P complains about the Council’s decision to refuse to renew his, and others, with residents’ parking permits because the development he lives in was, or should have been, designated ‘car free’: as a result, he now has no permit which means this causes him difficulty trying to park close to his home.

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What I have investigated

2. I did not investigate Mr P’s complaint that had he known about the car free designation when he successfully bid for his flat through the Council, he would not have accepted it. The reason for this is given towards the end of this decision.

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The Ombudsman’s role and powers

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)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered all the information Mr P sent, the notes I made of our telephone conversations, as well as the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr P and the Council.

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What I found

7. Mr P has lived in the flat he rents from a housing association for more than 12 years. He always received a residential car parking permit (the permit). This allowed him to park on a nearby street. In 2016, the Council contacted him, and others in the block, saying they had wrongly received permits. Residents in this block were never entitled to them. This was because of an agreement reached with the developer when it originally granted planning consent for the development. Under the agreement, the development was classed ‘car free’.
8. This was set out in a section 106 agreement. This is a legal agreement between a council and developer linked to the planning consent. It sets out what the developer must do to reduce its impact on the community. It allows a development that might not otherwise be possible by getting concessions and contributions from the developer, for example. Under the agreement, the developer agreed to tell all those buying and renting the flats about this car free restriction and include notification of it in legal documents.
9. Despite continuing to issue permits from 2016, in 2020, the Council finally warned Mr P he would only have a permit for 9 more months.
10. In February 2021, the Council removed the permits. Mr P made his own private arrangements to park off-road, but this is not a secure long-term arrangement. He believes the Council should give him, and the other 17 residents affected, a permit. He complains residents received a permit from 2005. None were warned when moving to the flats about parking restrictions.
11. In response to my enquiries, the Council explained it was aware of the incorrect issuing of permits for some time before it acted. It only noticed the mistake during an internal check. It began to receive a growing number of complaints from other residents about parking shortages because of the incorrect issuing of permits for car-free developments and the possible misuse of visitor permits. The Council had to act and do so consistently across all similar sites.
12. While it initially explained permits were issued in error, and it would issue no more, the Covid-19 pandemic and the restrictions meant it decided not to enforce the change when residents were more likely to be home, with the car parked outside, and the difficulties they would face making new arrangements. It would only do so when the situation nationally improved and residents could reasonably make alternative arrangements. This also had the benefit of giving residents more time to consider options.
13. When reaching its decision, it considered Council policy, the section 106 agreement, the traffic management order, complaints received, and the pressure on parking in the areas around car-free developments.

Legal Case

14. For a section 106 agreement to be enforceable, it must do one of four things:

• Restrict the development or use of the land;
• Require specified operations or activities in, on, under, or over the land;
• Require the use of land in a specified way; or
• Require the payment of money to the council on a date or periodically.

15. To help prevent harmful emissions from vehicles, local councils looked to manage on-street parking demand by requiring new developments to be ‘permit-free’. They did this through section 106 agreements which placed the burden of not allowing occupants to apply for permits on developers.
16. This practice was challenged in May 2017 in the Court of Appeal [R (on the application of Khodari) v Kensington and Chelsea RLBS [2017] EWCA Civ 333]. A tenant challenged the granting of permit-free planning consent under a section 106 agreement arguing it was not within the scope of the agreement. The tenant argued it did not meet the 4 obligations set out above. This was because the permit-free obligation was connected to the highway, not the development or its land. The court agreed. It decided a permit-free obligation was not a valid planning obligation under section 106.
17. The court went on to decide the obligation was saved by another clause in the agreement which referred to section 16 of the Greater London Council (General Powers) Act 1974. This allows a council to enter in to an agreement with the owner of the land where it is, ‘given or made under seal in connection with the land’. The phrase, ‘in connection with the land’ has a wide meaning and there was a connection between the residential use of the land and potential granting of new permits.
18. I asked the Council if it considered this case because while its section 106 agreement was similar, it did not refer to section 16. The Council explained:

• all its section 106 agreements following this decision now state they are made under section 16 of the Greater London Council (General Powers) Act 1974 as well as other powers. When deciding planning applications, it takes account of the development plan;
• clause 6.2 of the agreement states all the units of this development are to contain a notification in the legal documents which provides there is no right to a parking permit. This means the restriction is brought to the attention of individuals before each letting or sale. Variations from this restriction are solely at the Council’s discretion;
• it accepts section 16 is relevant but so are other powers. It argued clause 3 (b) of the agreement is made under enabling powers including section 111 of the Local Government Act 1972. This allows it to do anything calculated to be in accordance with the discharge of its functions. It considers this power is valid and can be used for the proper planning of the area to manage its highways duties;
• the Highways Authority agreed to strengthen the Council’s case by offering a section 106 agreement containing section 16 powers to the local planning authority for all roads in the area repeating the permit car free restriction; and
• those wishing to apply for a permit who live in a car free development are told they cannot when they try to do so through its website.

Analysis

19. The section 106 agreement set out the obligations the developer of the site gave the Council which it agreed to keep. Under paragraph 6 (Car Free Development) , it is the developer’s responsibility, not the Council’s, to warn prospective occupiers and occupiers that occupation is conditional on them not requiring, or applying, for on-street parking permits within the controlled parking zone. This needs explaining in any licence transfer or tenancy agreement.
20. The Council considered the implications of the above legal case. It says despite the judgement, its own legal advice states it can rely on section 111 of the Local Government Act 1972 as this is referred to in the agreement. Section 111 states a local authority, ‘shall have the power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions’.
21. It is not my role to decide whether the Council’s interpretation and reliance on section 111 is correct. These are matters for a court to consider and decide, not the Ombudsman. I am satisfied the Council considered the 2017 case, its application to these circumstances, and received legal advice it can rely on section 111.
22. I am also satisfied the Council, in 2020, gave advance warning to Mr P of its decision not to renew his permit the following year. This gave Mr P time to consider what other car parking options might be available to him. It also allowed him time to consider whether he needed to get legal advice about its decision. Indeed, the Council alerted Mr P back in 2016 of a potential problem with future permit renewals.
23. Even if there had been fault with any of the Council decisions, they caused Mr P no injustice. This is because for the last 12 years, he benefited from receiving a permit for which he had no entitlement.

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Parts of the complaint that I did not investigate

24. I did not investigate any complaint Mr P had of not knowing about the car free status of the development when he bid for his flat. This is because he was made aware of the restriction by the Council in 2016.
25. The law says we cannot investigate late complaints. A late complaint is when someone takes more than 12 months to complain to us about something a council has done. Mr P knew in 2016 about the restriction and presumably how he felt about accepting the flat had he known of the restriction at the time it was offered. Mr P had until 2017 to complain to us about it. He did not complain to the Council until September 2020 and then to us in January 2021.

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Final decision

26. I found no fault on Mr P’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman