Decision : Not upheld
Decision date : 18 Mar 2019
The Ombudsman's final decision:
Summary: Mr Y complains about the Council’s failure to enforce against obstructions to the dropped kerb which serves his driveway. The Ombudsman finds no evidence of fault in the Council’s actions, and does not uphold the complaint.
- The complainant, whom I will call Mr Y, complains that the Council has failed to take appropriate action in response to his reports of vehicles obstructing the dropped kerb used to access and exit his driveway.
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
- During the course of my investigation, I have
- Attempted to contact Mr Y by telephone to discuss his complaint. I subsequently corresponded with Mr Y by email;
- Made enquiries of the Council, and considered its response;
- Consulted the relevant law around the enforcement of traffic contraventions, cited where necessary in this statement; and
- Issued a draft decision and considered any comments received from the Council and Mr Y before making a final decision.
What I found
- The Traffic Management Act (2004) gives councils the power to enforce against certain traffic contraventions. This includes some parking contraventions. Section 86 of the Act confirms that “… in a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of (iii) assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge”.
- This means that councils have the power to enforce against obstructions to a dropped kerb. If a Civil Enforcement Officer (CEO) believes a parking contravention has occurred, they may fix a Penalty Charge Notice (PCN) to the vehicle, or issue it to the person in charge of the vehicle.
- Mr Y says that inconsiderate drivers sometimes park on his road and partially obstruct the dropped kerb serving his driveway. He believes the Council should issue a PCN each time he reports any form of obstruction to the dropped kerb. Mr Y has confirmed that he does not make a report every time a vehicle blocks his driveway because the Council will only pursue enforcement in certain circumstances.
- Mr Y first contacted the Council to raise general concerns about the problem in April 2018. Mr Y explained that vehicles persistently park in the short space between his and his neighbour’s driveway. The short space means that cars often overhang the dropped kerb, thus narrowing his entrance and exit. Mr Y says this is further exacerbated by the type of kerbstone on the dropped kerb in question.
- After an exchange of correspondence with the Council, Mr Y submitted a formal complaint. Before responding to his complaint, the Council arranged for its ‘Parking Enforcement Manager’ to visit the site in September 2018. I have considered the notes and photographs taken during this visit. These reveal that, at the time of the visit, a car was parked with its boot overhanging the flat area of the dropped kerb serving Mr Y’s drive. The notes confirm the officer’s view that:
- the dropped kerb is a standard size
- the offending vehicle did not impact on the accessibility of Mr Y’s driveway
- the road is not busy and is residential in nature
Was there fault in the Council’s actions causing injustice to Mr Y?
- Mr Y has acknowledged that he does not usually report possible parking contraventions to the Council because he says it will take no action. Instead, Mr Y approaches the offending drivers himself. I asked the Council to provide copies of all reports made by Mr Y about dropped kerb obstructions. The Council confirmed it has not received any individual reports; only the general concerns raised by Mr Y in his correspondence and formal complaint.
- The Council’s website says: “If a car is parked over your home's dropped kerb, you can report it by calling us” and “A Civil Enforcement Officer cannot enforce while on patrol as they won't be able to tell if it is not the homeowner's vehicle parked on a driveway.”
- The Council can only respond to contraventions it is made aware of. The Ombudsman’s role is to consider whether there has been fault in the administrative actions of the Council. As Mr Y has not reported any specific incidents, it is not possible to reach a view on how the Council has responded because it has not been given an opportunity to respond.
- As I cannot consider the Council’s actions in response to individual reports, I have considered Mr Y’s complaint that the Council’s policy contradicts the ‘Traffic Management Act’. The law states that it is a contravention for vehicles to park ‘adjacent’ to a dropped kerb. In my view, it is open for councils to determine and define what it considers to be ‘adjacent’. It is good practice to have this confirmed in policy to ensure consistency with parking enforcement. In this case, the Council has decided that the axle of the offending vehicle must overhang the flat part of the kerb before it can be considered a contravention.
- The Ombudsman would not condone the fettering of discretion. We would criticise a council which said that it would never enforce against a vehicle which only partially blocked a kerb (i.e. by boot or bonnet) as each case should be considered on its own merits. This is important in Mr Y’s case as he says that cars sometimes park at both ends of the dropped kerb. The impact of two overhanging boots at each end of the dropped kerb may be greater than the impact caused by a single car with an overhanging axle. However Mr Y has not reported any such cases to the Council.
- Councils should not adopt blanket policies. However, the wording in this case says that a PCN ‘may not’ be issued rather than ‘will not’ be issued, so I am satisfied the Council has not fettered its discretion or applied a blanket policy in this case.
- Furthermore, the law only provides a ‘power’ to enforce against parking contraventions, rather than a ‘duty’. Councils therefore have discretion to decide whether or not to issue a PCN in any given case. I appreciate that Mr Y’s preference is for a PCN to be issued every time a vehicle partially overhangs his driveway; however the Council must consider each report on its own merits.
- For the reasons explained in this statement, I do not uphold Mr Y’s complaint.
- I have completed my investigation with a finding of no fault for the reasons explained in this statement.
Investigator's decision on behalf of the Ombudsman