Hertsmere Borough Council (18 010 274)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 08 Mar 2019

The Ombudsman's final decision:

Summary: Mr and Mrs Y complain about the Council’s decision to exclude their address from a Controlled Parking Zone. The Ombudsman find some fault in the Council’s consultation, but considers this would not have affected the outcome of the proposals. The Ombudsman also finds the Council provided wrong information to Mr and Mrs Y, which raised their expectations. However there is no evidence of fault in the implementation of the 2017 Traffic Order.

The complaint

  1. The complainants, whom I will call Mr & Mrs Y, complain that:
    • Their apartment block has been excluded from a Controlled Parking Zone (CPZ);
    • Changes to the parking restrictions were made without the consultation of all those affected; and
    • The Council has failed to explain why it departed from a senior officer’s view that an error had been made, and that their address should have been included in the CPZ and all residents in the apartment block should be eligible for parking permits.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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)

Back to top

How I considered this complaint

  1. During my investigation I have:
    • Considered information submitted by Mr and Mrs Y;
    • Made enquiries of the Council and considered its response;
    • Consulted any relevant law and guidance, cited where necessary in this statement; and
    • Issued a draft decision and considered any comments received from the Council and Mr and Mrs Y before making a final decision.

Back to top

What I found

  1. To introduce a CPZ, councils must make a Traffic Regulation Order (TRO) or Traffic Management Order (TMO) in accordance with the Regulations made by Parliament. (Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996).
  2. The Regulations set out procedures for the consultation process and dealing with objections to a proposal before a council makes a TRO. It should be noted that the consultation is not a referendum; a council must have regard to the outcome of consultation but is not bound by it.

What happened

  1. Mr and Mrs Y live in a block of 12 flats. The block was built sometime between 2001 and 2004, and contains a private gated parking area which provides two parking spaces for each residential unit. The parking area also includes a total of three visitor parking spaces, available on a first-come, first-serve basis.
  2. Until recently, the road on which Mr and Mrs Y live allowed on-street parking for all, except for one hour (between 2pm and 3pm), to deter commuter parking. Mr and Mrs Y say they found this arrangement to be acceptable because visitors and trades people could work around the one hour restriction.
  3. However, in 2017, the Council consulted on a proposal to introduce further parking controls, restricting on-street parking to permit-holders only.
  4. Mr and Mrs Y’s address is not included in the CPZ implemented in 1996, and as a result they were not directly consulted about the proposed changes. Although the Council points out that it displayed a notice on the road to advertise the proposal.
  5. The Council introduced the permit scheme following consultation. Mr and Mrs Y say they had been unaware of the proposals, and so put in a late objection. They also applied for a parking permit. The Council refused their application on the basis that they lived outside the area designated in the 2017 order.
  6. Mr and Mrs Y complained. Internal emails between Council officers show some discussion about the complaint. The email exchange was forwarded to Mr and Mrs Y. The senior manager confirmed: “my understanding is that all residents of [the block] should have been treated in the same way as all flats which existed in the council’s controlled parking zones before the introduction of our strategy. Looking at the trail of emails I don’t think [Mr Y] will agree to our proposal for four permits on a first come first serve basis for [the block] residents. I think all residents should be eligible due to the time that the application was granted permission… the CPZ was introduced in 2005 as a result all the flats in [the block] should have been included in the consultation process. I have no reason to refuse permit eligibility to any resident of [the block] base [sic] on our parking management strategy”
  7. When reading the email in its entirety, it appears the manager had misunderstood a key fact: she believed the CPZ was introduced in 2005 and therefore after Mr and Mrs Y’s apartment block was built.

Was there fault in the Council’s actions causing injustice to Mr and Mrs Y?

Consultation

  1. The regulations state that, before implementing a traffic order, all councils must “publish at least once a notice (in these Regulations called a “notice of proposals”) containing the particulars specified in Parts I and II of Schedule 1 in a newspaper circulating in the area in which any road or other place to which the order relates is situated; and take such other steps as it may consider appropriate for ensuring that adequate publicity about the order is given to persons likely to be affected by its provisions and, without prejudice to the generality of this sub-paragraph, such other steps may include:
    • the display of notices in roads or other places affected by the order; or
    • the delivery of notices or letters to premises, or premises occupied by persons, appearing to the authority to be likely to be affected by any provision in the order”
  2. The Council has confirmed that it chose to undertake letter drops to those addresses listed in the proposed order, therefore purposefully excluding the residents in Mr and Mrs Y’s apartment block. However the Council confirms it displayed a site notice, although I have not seen evidence of this in place.
  3. The regulations are clear that the purpose of consultation is to publicise the proposals to “… persons likely to be affected by the provisions”. This is not limited to only those households within the proposed area. Mr and Mrs Y have been affected by the traffic order because they have lost the benefit of on-street parking. Although there was no statutory requirement on the Council to deliver letters to those potentially affected, it opted to use this method of consultation. When doing so, it is my view that the Council should have included Mr and Mrs Y’s household and any other addresses “likely to be affected”.
  4. This fault meant that Mr and Mrs Y lost the opportunity to raise their objections before the deadline for responses. However I am not persuaded that the outcome of the traffic order would have been any different, had Mr and Mrs Y been allowed this opportunity. This is because the Council has provided information which suggests that residents were, on the whole, satisfied with the proposal. The Council also says that Mr Y had approached residents to rally support for a change to the restrictions, but had been unsuccessful in doing so.
  5. The injustice is therefore lost opportunity, which the Council will apologise for.

Implementation

  1. The Council confirms that CPZs have been used in its area since 1996. The previous order allowing the Council to enforce against on-street parking between 2pm and 3pm is therefore outside of the scope of my investigation. However it is relevant to the timeline of events, so I have mentioned it for reference only.
  2. The site where Mr and Mrs Y live was previously occupied by a commercial property: a nursing home. In 2001 the site owners received planning permission to build 12 residential apartments and a car park.
  3. In 2005 the Council then introduced its ‘Parking Strategy’ which confirmed that:

“where new residential developments are built within or close to existing CPZs, the council will expect sufficient off-street parking to be provided. The council will not issue residential permits to occupiers of new build developments within or close to existing CPZs. If the development involved in the extension or sub-division of an existing residential building, within a CPZ, the number of permits being issues will be no greater than the number which would have been available for the original property”

  1. Mr and Mrs Y argue that their property is not ‘new development’ because it was built some years before implementation of the Council’s ‘Parking Strategy’. However the apartment block was built after the introduction of the original traffic order made in 1996. This is relevant because the Parking Strategy refers to “existing CPZ’s”.
  2. When the Council amended the order in 2017 to further restrict parking to permit holders only, it had the opportunity to review the designation of its parking zones. It could have included Mr and Mrs Y’s address, had it decided it was appropriate to do so. However, in the context of the 2005 ‘Parking Strategy’, I am satisfied Mr and Mrs Y’s address is ‘new’ development.
  3. Many councils exclude new developments from CPZs as there is an expectation on housing developers to provide satisfactory parking to mitigate the demand for on-street parking. Mr and Mrs Y’s property is served by two designated parking spaces. Furthermore, there are three extra bays to serve visitors of the 12 apartments.
  4. I am satisfied the Council has applied its strategy correctly, and there is no evidence of procedural fault which would allow the Ombudsman to question the merits of the Council’s decision to refuse a permit.

Officer advice

  1. As explained in paragraphs 13 and 14 of this statement, the Council originally provided wrong advice to Mr and Mrs Y. This advice was based on a misunderstanding around the key dates.
  2. This raised the expectations of Mr and Mrs Y, who were then led to believe that the order may be reviewed and their address included. Mr Y pursued contact with the Council to obtain an explanation of the advice given, and particularly why other officers had departed from it. The Council has since explained to the Ombudsman that the senior officer who provided the advice had failed to consult with the Parking Services Manager before emailing Mr and Mrs Y. I understand the senior officer in question is no longer employed by the Council, so it is not possible to obtain her comments in response to this complaint.
  3. To remedy the effects of the raised expectations, the Council will apologise to Mr and Mrs Y and provide a clear explanation for the misinformation it provided.

Agreed action

  1. Within four weeks of my final decision, the Council will:
    • Apologise to Mr and Mrs Y for the lost opportunity caused by its failure to include their address in the letter-drop consultation; and
    • Apologise to Mr and Mrs Y for the raised expectations caused by the wrong advice it provided in May 2018. The Council will also provide a clear explanation for the conflicting advice.

Back to top

Final decision

  1. I have completed my investigation with a finding of fault in some elements of the complaint. The Council has agreed to implement the above actions to remedy the injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page