Decision : Upheld
Decision date : 17 Nov 2021
The Ombudsman's final decision:
Summary: Mr D complains about the Council's decision to introduce parking restrictions on a road near his home and business and that the Council did not deal properly with his petition to change the parking restrictions under the ‘right to challenge parking policies’ procedures. There was no fault in the Council’s decision or the way it dealt with his petition. It delayed responding to his complaint but has already apologised for that, which is a suitable remedy.
- Mr D complains about the Council's decision to introduce parking restrictions on a road near his home and business. He also complains the Council did not deal properly with his and other residents’ petition to change the parking restrictions under the ‘right to challenge parking policies’ procedures.
- Mr D says as a result of the parking restrictions his and other businesses have suffered and residents have been inconvenienced.
The Ombudsman’s role and powers
- 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)
- 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 spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
- The Traffic Management Act 2004
- Statutory guidance: Right to challenge parking policies; Traffic management Act 2004: Network Management Duty Guidance, DCLG 2015
What I found
Traffic Regulation Orders
- If a council wants to create waiting restrictions such as double yellow lines, it must make a Traffic Regulation Order (TRO).
- There is a legal process 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 Regulations say councils must publish a notice in a local newspaper setting out the proposals and “take such other steps as it may consider appropriate” to ensure satisfactory publicity. This may include directly telling people affected, but this is not a legal requirement.
- Objections to the proposed restrictions may be made in writing within 21 days of the publication of the notice. The council must consider any objections before it decides whether to proceed or whether to change its proposals. It must then publish a further “notice of making” and write to any objectors outlining the reasons for going ahead with the proposal.
- 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 binding referendum.
Right to challenge parking policies
- The Traffic Management Act 2004 imposes a duty on councils to manage their road network. As part of this network management duty, councils must develop parking strategies.
- The statutory guidance issued in 2015 under section 18 of the Act introduced a right for local residents and firms to petition the council to initiate a local resident review of these parking policies. Residents can also petition for a review of provision of parking, parking charges or the use of yellow lines.
- The statutory guidance says councils should put in place a petition scheme that allows people and businesses to raise petitions about the parking restrictions in place for a specified location. This is to enable those affected by TROs to raise issues, including changed circumstances or unintended consequences, between scheduled reviews of the TROs. The petition scheme should set out the minimum requirements for a valid petition (such as a minimum number of signatures); the circumstances where a petition will not be considered; and how the council will manage petitions received and any review.
- Once the council has accepted a petition, it should inform the petitioner what aspects of its parking policies will be reviewed and how. Following a review, the council should provide a report explaining its findings and any recommendations. The statutory guidance says wherever possible decisions on the council’s review should be made by local councillors, or petitioners should be able to escalate an initial decision to councillors.
The Council’s petition scheme
- The Council does not have a specific petition scheme to deal with petitions under the right to challenge parking policies statutory guidance.
- This means it must deal with them under its usual petitions scheme. This says petitions will be referred to the most appropriate senior officer, who will consider them and decide what steps to take. The officer may then write to the petition organiser setting out the Council’s response. Once a petition has been responded to it will be closed.
- The Council’s scheme says if a person wishes their petition to be considered at a meeting of councillors it must have at least 1,250 signatories.
- Mr D’s home and business is on the corner of Road 1 and Road 2. In April 2019 the Council published a TRO notice for Road 2 and two other nearby roads. The proposals were to designate existing parking bays for local permit holders only during the day, to remove some single yellow lines to create additional permit parking spaces, and to introduce new double yellow lines at the road junctions. The Council put notices on lampposts and wrote to residents. The Council says this letter went to every affected property.
- During July 2019 the local councillor visited the site and met with some residents. They asked for more double yellow lines to be installed. The Council received three objections to the TRO notice, including a concern that there would be a loss of parking, and also a request to extend the double yellow lines. It considered these responses and decided to proceed with the TRO but to amend the proposals to extend the double yellow lines along Road 2.
- The Council published the “notice of making” in September 2019. It then wrote to local businesses about how to apply for business parking permits. The TRO became operational in November 2019.
Mr D’s petition and complaint
- Mr D contacted the Council on 25 October 2019. He said he had not been consulted on the TRO, which would adversely affect his business as customers would not be able to park. The Council replied that it had written to all businesses on Mr D’s road and the neighbouring road. Mr D disputed this. The Council said customers could use a nearby pay and display car park and that Mr D could apply for a business parking permit.
- On 5 November, Mr D emailed the Council with a petition signed by 19 residents of Roads 1 and 2, calling for the double yellow lines to be removed. He attached the “right to challenge parking policies” statutory guidance. Mr D then met the local councillor and gave him the petition. The councillor forwarded his correspondence with Mr D to officers and a complaint was registered.
- Mr D chased the Council which replied on 12 December that the petition was going to be handed to full Council, but the meeting had been cancelled. The petition was therefore being considered by officers.
- Mr D continued to chase the Council for a response to his petition in January 2020. On 20 January an officer replied that, having considered the petition, the Council would make no changes to the TRO. It said the councillor had been speaking to residents, most of whom said they were previously blocked in by vehicles parking on the former single yellow lines and were therefore supportive of the double yellow lines. The Council noted that previously Mr D’s customers would have been unable to park on the single yellow lines and that replacing the double yellow lines with single yellow lines would not enable his customers to park in Road 2 during the daytime. However, it could cause residents parking on driveways to be blocked in. The Council also noted pay and display parking was available nearby. Mr D made a freedom of information request to the councillor to find out which residents he had met and contacted his MP.
- The Council replied to Mr D’s complaint on 6 February 2020. It acknowledged that his petition indicated some residents were questioning the effectiveness of the parking scheme but having considered the views of residents the Council had decided to maintain it.
- Mr D asked to escalate his complaint on 2 March 2020. He said 80% of the residents of Road 2 opposed the double yellow lines. He also asked the Council to provide businesses with free parking for their customers in the permit bays for at least three hours. He said this would be consistent with other parts of the Council’s area. Mr D was concerned that an “informal survey” of residents by the councillor was being used to overturn his petition.
- Mr D chased for a response to his second stage complaint for the next few months. In July Mr D contacted the Council’s leader and asked for his complaint responses to be reviewed. The Council agreed to carry out an additional stage two review.
- The Council wrote to Mr D on 27 July 2020 with its stage two complaint response. The Council said:
- 19 signatures was 50%, not 80%, of the residents and businesses of Road 2, but in any case, the scheme was for three roads and all residents views needed to be considered.
- A petition only initiated a review, it did not automatically overturn a parking policy or TRO. Mr D’s petition had been considered but the Council had decided not to change the scheme.
- The Council did not agree that the scheme contradicted their parking strategy in relation to support for businesses. It had to take a fair and consistent approach to meet the needs of individuals and communities as best as possible.
- I understand Mr D is unhappy with the introduction of parking restrictions on Road 2 as it means his business will have to pay for parking and his customers cannot easily or freely park. However, the law does not give anybody the right to park on the public highway. It is for the Council to decide where people should be allowed to park and when. It is not for the Ombudsman to determine the appropriate parking scheme for an area.
- My role is to determine whether there has been administrative fault in the way the Council decided and implemented the TRO. I have also considered how the Council dealt with Mr D’s petition in relation to the right to challenge parking policies statutory guidance.
The traffic regulation order
- Mr D says he was not consulted on the proposed TRO and did not receive a letter. The Council says letters were hand delivered to all affected properties. I have no reason not to believe what Mr D says, but when considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. I consider it most likely that the Council delivered letters to all affected properties as this is its normal practice and it later received objections to the proposals from some residents. I cannot say why Mr D did not receive the letter.
- However, even if the Council had missed Mr D’s property this would not be fault, as it is not legally required to write to all residents. To introduce parking restrictions, the Council must publish a notice in a local newspaper. I have seen that it did so and that it also placed notices on lampposts. I therefore do not find any fault in the way the Council publicised the proposed TRO.
- The local councillor spoke to several residents who were supportive of the double yellow lines. Mr D is concerned that this was an informal survey which was used to overturn his petition and that it was not transparent as he does not know who the councillor spoke to. Mr D is not entitled to know the names of the residents as this is confidential third-party information. In addition, local councillors are entitled to speak to residents to inform their views. There is no fault here.
- In reaching its decision to proceed with the TRO the Council must consider any objections it receives, but the Council is entitled to introduce restrictions even if residents object. It is also entitled to amend the advertised TRO and to consider the views of local councillors. I have seen the Council wrote a report considering the objections and explaining why it decided to proceed with an amended TRO.
- The evidence shows the Council followed the correct legal process to introduce the TRO. It publicised its proposals and considered all objections received. It was entitled to disagree with those comments and to decide to progress with the TRO. Mr D and other residents disagree with the TRO, but there is no evidence fault in the way the Council made this decision. As such, the Ombudsman cannot challenge it.
Mr D’s petition
- I have gone on to consider how the Council dealt with Mr D’s petition to challenge the TRO. In the absence of a specific petition scheme to deal with challenges to parking policies, the Council must follow its usual petitions policy. This requires the petition to be considered and responded to by a senior officer.
- The officer replied to Mr D’s petition on 20 January 2020. He said the Council had considered it and the concerns Mr D had raised about the double yellow lines, but the Council had decided not to change the parking scheme. The Council was entitled to decide this. Mr D’s petition was not binding. Councils should consider petitions, but they are not required to implement them. The Council was aware of Mr D’s and the petitioners’ concerns. It was entitled to reach a different view about the parking scheme. There is no fault in its decision not to amend the TRO following Mr D’s petition.
- When Mr D submitted his petition in November 2019 it was also registered as a complaint. Mr D then received two responses, one to the petition in January 2020 and one to his complaint in February 2020.
- On 2 March 2020 Mr D asked to escalate his complaint to the next stage of the complaint procedure. The Council aims to reply to these within 20 working days, so by April 2020. It did not reply until 27 July 2020. I appreciate this was during the COVID-19 lockdown when the Council was dealing with the pandemic, but I consider the delay to be fault.
- This delay resulted in Mr D chasing his complaint and the Council agreeing to carry out a further stage two investigation. This could have been avoided if the Council had responded sooner.
- The Council has already apologised for the delay in its November 2020 response. This is an appropriate and proportionate remedy for any injustice caused in line with the Ombudsman’s guidance.
- There was no fault in the Council’s decisions on the parking scheme. There was fault in complaint handling, but I am satisfied that the actions the Council has already taken remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman