Decision : Not upheld
Decision date : 04 Apr 2022
The Ombudsman's final decision:
Summary: Mr X complained about the issuing of a parking charge notice. He says it should not have been issued because the land he parked on was public highway and not private land owned by the Council. There is no evidence of fault in respect of the action taken on behalf of the Council regarding the issuing of the parking charge notice. The Council’s powers only extend to enforcement against the driver and because it could not establish who was driving in this case, it cancelled the charge.
- Mr X complained about the issuing of a parking charge notice. He says it should not have been issued because the land he parked on was public highway and not private land owned by the Council.
- Mr X says that even though the parking charge notice has now been cancelled, he was put to considerable time and trouble to get to this point and he believes this fault has affected hundreds of other drivers.
The Ombudsman’s role and powers
- 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)
- 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
- As part of the investigation, I have:
- considered the complaint and the documents provided by the complainant;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with the complainant;
- sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.
What I found
- On 3 January 2021, Mr X visited Stanmer Park which is located in the South Downs National Park. Mr X parked on an access road. A private parking company acting on behalf of the Council, issued a parking charge notice and attached it to Mr X’s vehicle.
- Mr X wrote to senior council managers about the parking charge notice. His letter was passed to the customer feedback section which responded saying Mr X should submit an appeal if he was contesting the charge. The Council says Mr X neither paid or appealed the charge and so on 16 March 2021 the parking company, on behalf of the Council, passed the outstanding charge to a debt recovery company. The debt recovery company were unable to collect the payment and so returned the matter to the private parking company on 10 September 2021.
- The private parking company, acting on behalf of the Council, subsequently cancelled the parking charge notice. The Council says this is because in order to enforce the charge, it would have to prove who was the driver of the vehicle. It said there was insufficient evidence to do this and so it cancelled the charge.
- Throughout 2021, Mr X wrote to the Council about the parking charge notice and the Council’s authority to take the action it did. Mr X says that he sent over 40 emails, six formal letters and made various Freedom of Information Act (FOI) requests in respect of the parking charge notice and the private parking company. He says that certain FOI requests are still outstanding.
- Mr X has posed a number of questions to the Council including whether the parking notice issued by the company was fully in accordance with the Protection of Freedoms Act 2012 and whether the Council was a traffic authority. Mr X also drew attention to an Ombudsman report against Kent County Council which he considered was directly relevant to the issues in this case. Mr X says the Council has failed to address the relevant issue or acknowledge fault.
- In 2016, the Council considered a report setting out proposals to introduce parking control and charges at Stanmer Park. The Council advertised a proposed Traffic Regulation Order (TRO) in March 2020. In September 2020, the responses to the TRO were considered at a council meeting which decided to implement the proposals. It also determined to review the parking scheme 18 months after implementation.
- The Council cancelled its contract with the private parking company on 18 February 2021 and introduced the new parking charges from 1 April 2021.
- The Council says the land in question is private land. It says specifically it is a bridleway which runs across “private open space” and the Council is the freeholder of that land. I am aware that much of Mr X’s correspondence with the Council is about the status of this land. He argues it highway maintainable to public expense and so it cannot use powers relating to private land. It is not the Ombudsman’s role to determine the status of the land and in any case, I am not persuaded it is critical to my determination of this complaint. The charge has now been cancelled and so Mr X’s injustice is largely resolved.
- The Council maintains the land is private and The Protection of Freedoms Act 2012 allows a council to enforce parking restrictions on private land it owns. However, the provisions of this Act allow it only to enforce any parking charge against the driver of the vehicle. It cannot transfer the charge and enforce it against the owner of the vehicle. In this case, the private parking company acting on behalf of the Council issued a parking charge notice and when it wasn’t paid or appealed, passed it to a collection agency. As it did not have evidence to show who was driving, it was unable to take further enforcement action and so cancelled the charge. I find no fault in the Council’s actions in this case.
- I note the Council has now ended the contract with the private parking company and has implemented a Traffic Regulation Order covering Stanmer Park and the access road. The Council can now enforce parking contraventions using the Traffic Management Act 2004.
- Mr X says this is not just about the parking penalty issued to him but also includes the other drivers who received an incorrect parking charge notice. I have not found Mr X’s charge was incorrectly issued and so there is no basis for me to consider whether other people have been similarly affected.
- I will now complete my investigation as there is no evidence of fault casing a significant injustice in this case.
Investigator's decision on behalf of the Ombudsman