Summary: Ms X complained the Council stopped her parking near her home and told her the area is a car free development. Ms X said this affected her family’s health and caused distress. There was fault in the way the Council did not enforce its agreement to stop any parking within the development. This fault did not cause an injustice to Ms X.

The complaint

1. Ms X complained the Council stopped her parking near her home and told her the area is a car free development. Ms X said this affected her family’s health and caused distress.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I read Ms X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Ms X and the Council.
6. Ms X 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

Background information

7. Planning permission is required for the development of land (including its material change of use).
8. Planning permission may be granted subject to conditions relating to the development and use of land.
9. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
10. If a civil enforcement officer (CEO) believes a parking contravention has occurred, they may fix a penalty charge notice (PCN) to the vehicle or give it to the person appearing to be in charge of the vehicle. A motorist can pay a reduced penalty charge within 14 days.
11. A council must consider an informal challenge received prior to a notice to owner (NtO) being issued. If a council rejects an informal challenge, it should tell the motorist about the right of appeal.
12. If the penalty charge is not paid, the council may send a NtO to the keeper of the vehicle at the address where the vehicle is registered. This provides an opportunity for the keeper to either pay the charge at the full amount or make representations against the penalty charge within 28 days of the date of the notice.
13. The formal representations stage provides the opportunity for the keeper to state a case for not paying the penalty charge on one of the statutory grounds of appeal or for any other reason. A council must consider representations received within 28 days of the NtO and has discretion to consider any received outside this period. If a council accepts the formal representations the penalty charge is no longer payable. If the council does not accept the formal representations, it must inform the keeper with details of the right of appeal to an independent adjudicator. The keeper may either pay the full penalty charge or appeal to a parking adjudicator within 28 days.
14. Traffic management orders (TMOs) are legal documents drafted and made by a council, usually under the Road Traffic Regulation Act 1984. They regulate the use of highways for movement and parking.
15. A car free development is where parking is not provided on site. There was not enough capacity for additional vehicles when the Council granted planning permission.

What happened

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. The Council granted planning permission for a development in 2011.
18. In March 2012, the Council signed a section 106 contract with a housing provider. The contract confirmed the area was a car free development within a controlled parking zone. The contract detailed the housing provider would tell residents they were not entitled to a parking permit.
19. The Council moved Ms X to the development in 2015 as her old accommodation was being demolished. Ms X asked the housing provider about where she could park in January 2015. The housing provider told Ms X she would be eligible to apply for a parking permit. Ms X applied to the parking contractor responsible for parking in the area for a permit. The parking contractor issued Ms X a permit to park in a nearby parking area. The permit lasted for one year. Ms X applied to the parking contractor each year who issued her a new permit each year.
20. The Council imposed two traffic management orders in September 2022 and January 2023. The orders limited parking where Ms X parked.
21. The parking contractor stopped managing car parks in the area at the end of 2022. Ms X’s permit expired at the same time. The Council agreed one contractor would manage all parking in the area. The new contractor started to impose the Council’s original section 106 contract and would not allow parking in the area.
22. Ms X received several penalty charge notices at the start of 2023. She complained to the Council in January 2023. Ms X said the Council allowed her to park in the area for over seven years. She questioned why this changed.
23. The Council responded to Ms X’s complaint in February 2023. The Council advised Ms X the area was a car free development and had been since it granted planning permission. The Council said the housing contractor should have made this clear when she moved. The Council said Ms X should not have received a parking permit but was welcome to apply again if she, or her family, had health issues to warrant a permit. Ms X applied to the Council for a new permit.
24. The Council rejected Ms X’s application for a parking permit in March 2023. Ms X requested the Council consider a final review of her complaint. Ms X stated the Council told her she could park in a car park, near her home in 2015.
25. The Council issued its final response in May 2023. The Council said the previous housing provider told Ms X should could apply for a permit. The Council said the provider did not say she was entitled to parking or she would have a permit for the time she lived at the property. The Council accepted Ms X was not given all the information she needed when she moved. It offered to write off all penalty charge notices as a gesture of good will and pay her £300 compensation. The Council also offered to place Ms X on the housing list in band A for six months to enable Ms X to apply for a property with parking.
26. Ms X accepted the Council’s offer of £300 and to go onto the housing list for other properties with parking at the end of May 2023.
27. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to issue her a parking permit or make a financial payment.
28. In response to my enquiries the Council stated the area had always been a car free development and a controlled parking zone. It advised the previous parking contractor did not implement the restrictions. The Council said the housing contractor told her she could apply for parking, not that she would get it indefinitely. It said the new parking contractor was enforcing the contract.

My findings

29. The planning permission for the development, through a section 106 agreement, detailed the site was a car free development in a controlled parking zone. This placed limits on car parking in the area.
30. The Council’s contract detailed the housing provider agreed to tell potential residents they would not be entitled to parking. The housing provider told Ms X she could apply for a permit. The housing provider did not carry out its duty under its contract with the Council. However, the housing provider did not say she would be entitled to a permit indefinitely.
31. The Council, through its housing provider, asked a parking contractor to manage private parking in the area. This parking contractor issued Ms X with a parking permit for a car park near her house. The contractor continued to renew the permit until the end of 2022. It should not have done this. This is fault. The Council accepted its fault, wrote off Ms X’s parking tickets and offered her £300 compensation. It also offered to place Ms X on the housing list for six months to enable her to apply for housing with parking.
32. The Ombudsman does not criticise a council for enforcing a contract that was always in place. The Council was at fault for not enforcing its section 106 agreement. However, Ms X has not suffered any injustice because of the fault and she benefited from the Council’s fault for eight years.

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Final decision

33. I have completed my investigation. I have found fault by the Council, but this fault did not cause Ms X and injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman