London Borough of Hackney (18 014 077)

Category : Transport and highways > Traffic management

Decision : Upheld

Decision date : 31 Jul 2019

The Ombudsman's final decision:

Summary: Mr X purchased a car based on the Council’s decision to issue him with a parking permit. However, on renewal of the permit, the Council said the permit was issued in error and he was not eligible due to his property being located in a ‘car-free development’. There is fault and the Council has agreed to grant Mr X a parking permit until the lease on the car he purchased expires.

The complaint

  1. The complainant, Mr X, complains the Council has refused to renew his parking permit because he lives in a ‘car-free development’. Mr X says he purchased a car once his parking permit application had been approved. The Council says the permit was issued in error.
  2. Mr X has entered into a four-year lease agreement for the vehicle and will incur a financial penalty for withdrawing from the agreement early.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 considered Mr X’s complaint and discussed it with him on the telephone.
  2. I considered the information provided by the Council.
  3. Mr X and the Council were given the opportunity to comment on a draft and revised draft of this decision. I considered the comments I received from the Council. Mr X advised me he had no comments to make.

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What I found

  1. Mr X purchased a flat in a new development in 2017. He did not own a car when he moved into the property. Due to a change in Mr X’s circumstances, he considered purchasing a car. Mr X submitted his application to the Council for an annual residents parking permit. He paid a deposit on a vehicle. Mr X received an annual parking permit from the Council. Mr X then completed the purchase of the vehicle by entering into a four-year lease agreement.
  2. In October 2018, on attempting to renew the permit, Mr X was advised by the Council his address was a ‘car-free development’ and could not be granted a permit.
  3. In December 2018, Mr X submitted a complaint to the Council. He said if he had been alerted in 2017 that he was not entitled to a permit, he would not have purchased the vehicle. Mr X said he has been put in a financially untenable situation by an error made by the Council and he requested the Council to consider his case as a special circumstance and allow him to renew his permit for as long as he needs.
  4. The Council offered to extend his permit by three months in order to make alternate parking arrangements. Mr X agreed to this offer and the extended permit expired on 18 January 2019. Mr X requested an opportunity to renew the parking permit until the matter was resolved.
  5. The Council investigated Mr X’s complaint and sent its complaint response to him on 2 January 2019. The Council’s response said the following:
    • Mr X’s residence is covered by a car-free restriction set out in a planning legal agreement.
    • Occupiers of residential developments covered by this planning agreement are legally not permitted to apply for any type of on-street parking permits unless they hold a blue-badge.
    • The reason why car-free arrangements are imposed on new developments is so that the Council can allow new housing to be built without leading to overcrowding on neighbouring streets.
    • The Council said it appreciated Mr X would not have purchased a vehicle had he been aware that he was not entitled to a permit due to the status of his property. However, it felt it was important to mention it was the responsibility of those conducting the conveyancing for the purchase of the property to inform buyers that the property they are moving to is car free.
    • The Council said Mr X should consider legal advice if the deeds relating to his property did not contain information relating to this planning condition.
  6. The Council apologised it sold Mr X a permit he was not entitled to in the first instance and for the inconvenience and upset caused by the Council not correcting the error.
  7. The Council explained that at the time Mr X initially purchased the permit, it was not aware of his building’s car-free status. However, now that it had been informed of this, it was duty bound to stop issuing permits to him.
  8. The Council said it could not issue any further permits to Mr X. It provided him with a list of other options he could explore which included renting car parking space, parking outside a controlled zone and signing up to a car club.
  9. On 3 January 2019, Mr X requested a review of his complaint.
  10. The Council conducted an independent review and issued the report to Mr X on 9 January 2019. The Council also discussed the matter with Mr X on the telephone on 9 January 2019. Mr X said the information relating to the car-free condition was included in the conveyancing information however he did not recall seeing it due to the vast amount of information linked to the purchase and the fact that he was not a car owner at the time of purchase and had no intention of purchasing a car. Mr X said the Council’s error had left him in an ‘impractical, financially untenable position’. He said he would not have bought the car if he had known he would have to park it away from his neighbourhood. He said he was led into this situation by the Council’s error.
  11. Mr X advised the Investigating Officer that he would like the Council to exercise discretion and allow him to be granted an annual residents parking permit.
  12. The Council apologised for the error made by the Council in issuing Mr X with a parking permit he was not entitled to. In recognition of this error, it offered Mr X a further, discretionary, one-off, six-month extension.
  13. This extension expired in July and the Council has agreed to extend for a further three months while we complete our investigation into Mr X’s complaint.

The Council’s response to our enquiries

  1. The Council has maintained the development Mr X resides at is a ‘car-free development’. I asked the Council to provide me with evidence it alerted Mr X’s conveyancing solicitor about the restriction. The Council provided me with the local land charges search report it sent to Mr X’s solicitor on 9 January 2017 as part of the process of purchasing the property. There was no specific reference made to the development being ‘car-free’. However, there was reference made to a decision notice from 2014 that said a new section 278 agreement (The Highways Act 1980) would be made as part of the overall section 106 (Town and Country Planning Act 1990) agreement to prevent future occupiers of the development from applying for on-street parking permits.
  2. I queried the legal basis under which the Council was enforcing parking permit restriction as the local land charges search report suggested it was made under a section 106 agreement which would be unlawful and section 278 agreements relate to highway works, not parking.
  3. The Council then provided me with a deed, dated 1 April 2014, showing the owner of the development is responsible for informing new residential occupiers of the development that they will not be entitled to parking permits by the Council. The agreement is made pursuant to section 16 of the Greater London (General Powers) Act 1974, which is lawful.

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Analysis

  1. The Council said in its complaint response dated 2 January 2019 that it was not aware the development Mr X resides in was car-free when it granted him a permit in 2017. But the deed the Council sent to me regarding the parking permit restriction for the development shows the Council was aware of this from 1 April 2014. But it went on to issue a resident of the car-free development, Mr X, a parking permit in October 2017.
  2. It is clear that Mr X, as a resident of a car-free development, is not entitled to a parking permit. Mr X acknowledged the conveyancing information he was in possession of included this condition but he had not noticed it among all the information he had received, he was not a car owner at the time and had no intention to become one.
  3. The Council is responsible for Mr X’s belief he could have a permit by issuing him with one after he made the relevant application. Based on the belief that he was entitled to a permit, he entered into a four-year lease agreement for a vehicle. The Council then advised him the permit was issued in error and he is not entitled to a permit. Mr X says he would not have purchased the vehicle if he was not entitled to a permit.
  4. Mr X’s lease on the vehicle does not expire until October 2021. Mr X is unable to withdraw from this lease early without incurring a financial penalty of approximately £5000. Therefore the injustice to Mr X, as a result of the Council’s error, is significant.

Agreed action

  1. As Mr X’s address is not entitled to a parking permit, we cannot make a recommendation to the Council that it grants him a parking permit indefinitely.
  2. However, due to the injustice caused by the Council’s error, we recommended and the Council agreed to use its discretion to provide Mr X with a parking permit until the lease on his vehicle expires, in October 2021, or, until he moves from the property, whichever is sooner.

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Final decision

  1. There is fault and the Council has agreed to appropriately remedy the injustice. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman

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