Swindon Borough Council (18 013 914)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: Mr X says the Council failed to implement planned parking restrictions in his area. He says one of the reasons he bought his house was because of the planned parking restrictions. He seeks compensation. He believes the Council’s failure to implement and enforce the restrictions is a safety risk. The Council did implement the parking restrictions. However, it is at fault for causing uncertainty because of its delay developing a clear enforcement strategy alongside the restrictions. We do not consider the Council should pay Mr X compensation but we have recommended Mr X is paid a sum to acknowledge the time and trouble he took to bring his complaint and to acknowledge the distress the delay caused him.

The complaint

  1. Mr X complains that:
  1. The Council has not properly implemented the parking design code that it agreed to implement in terms of parking in his area.
  2. This has caused him an injustice as the Council’s unwillingness and or inability to either put the design code into practice or to enforce parking offences, is a safety risk.
  3. He also says a key part of his decision to buy his house in the area was the parking restrictions approved for the area. We seeks compensation from the Council.

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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)

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How I considered this complaint

  1. I spoke with the complainant and read his complaint file.
  2. I made enquiries with the Council and researched the relevant policy and guidance.
  3. Both the complainant and Council were invited to comment on the draft decision.

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What I found

Restricted Parking Zones

  1. A restricted parking zone (RPZ) is an area where if a person wishes to park or wait, they can only do so in a designated parking bay, even if there are no double yellow lines painted on the roads.

Consultation

  1. There is no general duty for public authorities to consult those affected by their decisions; but a duty to consult may arise because of the duty to act fairly, or as a result of a legitimate expectation. As Lord Wilson put it in R (Moseley) v London Borough of Haringey [2014] All ER (D) 332 (Oct), [2014] UKSC 56 at para [23]R v Devon County Council, ex parte Baker [1995] 1 All ER 73

“A public authority's duty to consult those interested before taking a decision can arise in a variety of ways….Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation.”

  1. The Judge in the above case also commented that the demand of fairness are likely to be, “somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.”

Council Constitution and delegated authority

  1. The Council’s constitution sets out the authority officers have to make decisions in the various areas of Council work. The Head of Highways and Transport (HH), has delegated authority to exercise powers relating to the regulation of the use of highways.
  2. The HH has delegated power to advertise and make Traffic Regulation Orders for whatever permitted purpose and where objections have been received to approve Traffic Regulation Orders in consultation with the relevant Cabinet member and Ward Councilors.
  3. The HH has the power to manage enforcement action.
  4. If an officer exercises any delegated powers either under the scheme of delegation or otherwise, this must be in compliance with the requirements of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012.
  5. These regulations state that meetings of a decision-making body must be open to the public unless they are excluded because of issues of confidentiality or if a lawful power is used to maintain orderly conduct or to prevent misbehaviour at a meeting.
  6. A delegated officer should also comply with the Openness of Local Government Bodies Regulations 2014. These state that the delegated officer must produce a written record of any decision if it otherwise would have been taken by the Council, or a committee of the Council but has been delegated to that officer.
  7. There must be appropriate prior consultation with relevant ward members and the relevant Cabinet Member.

The scope of my investigation

  1. As stated above, generally the Ombudsman does not investigate complaints about events where someone takes more than 12 months to complain to us about something a council has done. In this complaint, the Council’s decision to approve a design plan restricting parking in the complainant’s area, was in 2007.
  2. Councils are required to keep records of decisions and the background papers to those decisions for a period of six years from the decision date. As the Council’s decision to approve the planned parking scheme was made over 12 years ago, I do not consider it would be fair or proportionate for me to investigate so far back.
  3. Mr X was concerned that the Council did not undertake a feasibility study into whether the parking restrictions would work in practice. The Council did not undertake to complete a feasibility study. However, for the reasons stated above, in this case, I am not investigating decisions it made over 12 years ago.
  4. Nonetheless in order to provide a context for the complaint, I will provide a summary of the relevant background. I have chosen to investigate the complaint back to October 2016 because the complainant complained repeatedly about issues with the Council’s decision not to enforce planning restrictions from around that time and because the Council delayed in responding to his formal complaints.

Background

  1. In 2005 the Council granted planning for a large development in area D. The planning approval decision said that the development should be carried out in ‘broad accordance’ with approved design codes, which would provide details and guidance on residential development, detailed street patterns etc.
  2. It was agreed that an overall average of 1.5 car parking spaces per residential unit would be provided unless otherwise agreed in writing with the local planning authority.
  3. The design code was approved by the Council in January 2007. It said there would be 140 parking bays for over 700 dwellings. It said there would be one visitor bay per five households.
  4. In 2010 the Council released a parking statement which stated that all residents and prospective purchasers of houses in the development should be aware of “…the need to introduce parking restrictions and the affect this will have on the levels of parking availability.”
  5. It said that there would be 1000 ‘visitor parking bays’ in the development in the form of street lay-bys and visitor bays within a certain area of the development, area M.
  6. It said any parking outside of the marked bays would result in a penalty charge notice. The statement explained that the parking restrictions were necessary because, “the roads need to be kept clear of cars to maintain easy access for residents…and most importantly emergency vehicles.”
  7. The statement was shared with local estate agents and conveyancing firms to ensure people were made aware of the restrictions.
  8. Mr X bought a house in the area in 2012. He said the knowledge that the area would be subject to parking restrictions was key to his decision to buy his house.
  9. Throughout 2014 more and more properties became occupied. People were beginning to use visitor parking bays for parking and the area became more congested. Mr X emailed the developer, Developer P. He said that three out of five of the visitor parking bays were being occupied by contractors.
  10. Developer P responded that:

“When buying your new home, all residents signed the Deed of Covenant agreeing exactly where you could park your vehicle and lots of people seem to forget this...”

  1. There was a delay in bringing forward the implementation of the parking zone. The Council says this was partly because the parking zones could not be implemented until planning approval had been received for all the housing parcels on the development. It said that by that point the parking behaviours of many residents had developed and was not always in line with the planned parking restrictions.
  2. After a consultation period, the Restricted Parking Zone came into operation in October 2016.
  3. The consultation revealed there were many who objected to the restricted parking zone. However, the Council stood firm and said the, “…restricted parking zone was a fundamental part of the original planning strategy for the area which some residents will like to see implemented.”
  4. A local councillor commented that, “…increasing levels of parking are causing congestion and safety issues”.
  5. On 28 November 2016 a public meeting was held to hear concerns residents has about the restrictions.
  6. On 8 December 2016, Council officers, local councillors, the leader of the Council and the other senior members of the Council met to discuss residents’ concerns. No minutes were taken of the discussion. It was decided to undertake a review of the parking restrictions.
  7. The Council decided that with immediate effect, that “a more pragmatic and discretionary approach to parking enforcement” for the following five months. The Council says this was to enable further review of the restrictions.
  8. An email from a local councillor, councillor F, said she was pleased residents’ concerns had been listened to and that the Council would carry out a “full consultation” on the parking arrangements.
  9. Mr X immediately wrote to local councillors. He expressed dismay that the restrictions would not be applied. He said the Council had chosen to ‘pander to’ residents who ignored the design plan for parking restrictions.
  10. A Council officer responded to Mr X. He said the Council was conducting a review. He said reconsideration of the approach the Council had taken, including in area M, needed to be undertaken. He said, in particular the Council needed to look at reducing inappropriate use of the visitor bays.
  11. Mr X was unhappy at the Council’s change in policy. He considered the Council had not followed due process and asked who had made the decision to review.
  12. The Council said the decision was taken by a senior officer, who had delegated authority on operational matters in the Council Constitution. The decision was made by the HH.
  13. The consultation began in June 2017. In September 2017 some options were put forward, which provided more parking spaces. However, it was felt more information still needed to be gathered.
  14. On 9 February 2018 the Council circulated a public notice of amended proposals. Residents were given 21 days to object. In March 2018 the objection period ended. The Council had received 112 responses.
  15. On 12 July 2018 the Council cabinet members met to discuss the outcomes of the consultation. The proposed amendments were signed off in March 2019.
  16. The Council’s website says the restrictions were put into place in September 2019.

Mr X’s official complaint

  1. Mr X complained about the delay in decision making on 5 September 2018. The Council acknowledged his complaint. It says it was sent to the relevant department. Mr X did not receive any further response and complained again on 27 September 2018. On 18 October 2018 he complained again, this time to the Council chief executive.
  2. On 2 November 2018 he reminded the Council that he had not received a response. On 27 December 2018 the Council sent a stage two response to his complaint.

Analysis

The meeting of 8 December 2016 - the decision to take a ‘pragmatic approach’.

  1. Mr X was concerned that the Council should not have, after implementing the restricted parking zones in October 2016, changed its mind without consultation at a meeting the public were not invited to.
  2. The officer who made the decision to place a temporary hold on the restrictions had delegated authority to make that decision. However, it is difficult for me to assess whether the meeting was conducted in the way it should have been and whether the decision was reached without maladministration. This is because the Council did not keep any records of that meeting. That is fault. It has caused Mr X an injustice because it has undoubtably resulted in him having less trust in the Council’s approach.
  3. However, I do not find fault in the decision to take a ‘pragmatic approach’ to enforcement of the restrictions. While the approach continued for an unacceptable period of time (which I shall address below), the Council was not at fault for reviewing the impact of restrictions that had proven unpopular with many residents.
  4. This was a large development. There were bound to be initial problems. There was plainly a depth of feeling surrounding the implementation of the restrictions. It was reasonable for the Council to consider that it was necessary to call a public meeting. The Council sought to address concerns by trying to find more parking places. It did find some more places and so the review was a worthwhile exercise.

Delay

  1. One of the reasons Mr X was concerned about the outcome of the 8 December 2016 meeting was that suspending enforcement of the restrictions for a further period meant further delay. Mr X had to wait longer to find out how the parking restrictions would be enforced. He was concerned about safety in the meantime.
  2. The Council accepts that the delay, which was probably unavoidable, in implementing the restrictions in the first place, led to residents adopting parking practices which were out of step with the planned parking restrictions. It was inevitable that further delay would result in further confusion and uncertainty over what constituted the parking scheme in the area.
  3. I do not consider the delay between the period when officers met to discuss residents’ objections to the review’s proposals and the sign off of those proposals, was reasonable. It took eight months. This is fault. Recent experience had taught the Council that parking practices become established and are then difficult to change. Throughout this period, Mr X had no certainty about what parking restrictions were or were not in place. Being told that the Council has a ‘pragmatic’ approach to parking restrictions did not provide sufficient guidance. The uncertainty was an injustice brought about by delay.

Safety and enforcement

  1. The Council has produced records which show that enforcement of parking restrictions did continue during this period. In Mr X’s area there were 42 enforcement officer visits and three notices were issued. During that period there may have been many more breaches of the restrictions but the Council still had an enforcement strategy. Mr X has not provided evidence that substantiates any claim that the Council did not have regard to road safety during that period. As I stated above, its pragmatic approach to enforcement lasted for a longer than ideal period, but it is impossible to say that this had any actual impact in terms of safety.

Visitor Bays

  1. One of the concerns raised by Mr X was that the Council has been unable to enforce who uses the visitor bays. The Council says there is no realistic or practical method of limiting the use of these bays on the public highway to visitors.
  2. I cannot find the Council at fault for this. Visitor bays were part of the original design that the Council approved. It may be that it might have been advisable for the Council to conduct a feasibility test before approving the design code. It might then have anticipated the difficulties it would have enforcing. But, as I have stated above, I do not propose to investigate decisions that were taken in relation to the original design plan, over 12 years ago.

Compensation

  1. Mr X seeks compensation for being mis-sold his house. He says he bought his house thinking there would be sufficient parking restrictions and these do not exist in anything like the form he had expected.
  2. However, the parking restriction zone was not implemented until October 2016. Although the Council had approved a design code that aimed to reduce parking in the area, any parking zone restriction scheme has to go through a consultation period before it can be implemented. Mr X could not have known how that consultation would have affected the implementation of any parking restrictions. I do not find the Council at fault.

Delay in complaint handling

  1. The Council was slow to answer Mr X’s complaints. This understandably added to his annoyance during a period when he was awaiting the result of a review that he did not see the value in.
  2. The Council should have responded quicker to Mr X. It may have been that when Mr X filed his original formal complaint, in September 2018, the Council did not have much to report in response to Mr X’s complaint. But it should not have ignored it. Even after Mr X complained to the chief executive, he had to wait a significant time for a response. This is fault. I have made a recommendation to remedy this fault.

Agreed action

  1. Within one month of my final decision, the Council should:
  • Apologise to Mr X for failing to respond in time to his complaint.
  • Pay Mr X the sum of £150 for the time and trouble he took to pursue his complaint.
  • Pay Mr X the sum of £100 as an acknowledgment of the uncertainty caused by the Council’s delay in implementing the amendments to the parking restrictions.

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Final decision

  1. I have found the Council at fault for causing uncertainty and for its failure to respond in a timely manner to Mr X’s complaint. However, I have not found the Council at fault in other regards. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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