Devon County Council (20 005 507)

Category : Transport and highways > Traffic management

Decision : Not upheld

Decision date : 08 Jan 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council refused to enforce legislation under the Exeter City Council Act 1987 which prohibits the parking of vehicles on pavements, grass verges and central reservations. We propose to discontinue this investigation. The complaint is out of time, it is unlikely we would find fault, Mr X has not experienced a significant enough injustice to warrant an investigation and we cannot achieve the outcome he wants.

The complaint

  1. Mr X complained the Council refuses to enforce legislation under the Exeter City Council Act 1987 which prohibits the parking of vehicles on pavements, grass verges and central reservations.
  2. Mr X says this means he must sometimes walk in the road which is dangerous. He also says it affects people with visual impairments, who use mobility scooters or who are pushing prams.
  3. Mr X wants the Council to enforce the legislation.

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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 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault;
  • the fault has not caused injustice to the person who complained;
  • the injustice is not significant enough to justify our involvement;
  • it is unlikely further investigation will lead to a different outcome; or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I spoke to Mr X and considered his view of the complaint and the Council’s response to his complaint.
  2. I considered the Exeter City Council Act 1987.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before I made a final decision.

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What I found

The Exeter City Council Act 1987

  1. Section 30 (1) of the Exeter City Council Act 1987 (the Act) states “… a person who parks a vehicle… wholly or partly… on a footway comprised in an urban road shall be guilty of an offence and liable to a summary conviction”.
  2. Section 30 (8) of the Act states “The Council shall erect notices on roads at the borders of the area to which the prohibition… applies”.

Road Traffic Management Act 2004

  1. In 2012 a Regulation amended the Road Traffic Management Act 2004 Schedule 7 to include offences committed under section 30 (1) of the Act.

What happened

  1. In 1987 Parliament passed the Exeter City Council Act, which came into force in 1990. At this point, Exeter City Council was the Highways Authority for the city.
  2. The Police enforced its powers in relation to people parking on the pavement.
  3. In 2008 parking enforcement in Devon became a civil matter and the powers to enforce passed to Devon County Council who had replaced Exeter City Council as the Highways Authority. The parking contraventions in the Act were not included in the civil powers until a Regulation to amend the relevant legislation (the Traffic Management Act 2004) was passed in 2012.
  4. Since 2012, the Council has not enforced its powers in relation to pavement parking contraventions.
  5. Mr X was unhappy about this and in 2020 he complained to the Council.
  6. The Council responded. It said “we have reviewed the information available to motorists in Exeter and it is clear that we can no longer enforce the restriction with the current arrangement. To allow enforcement of pavement parking… we would need to place signs in every street across the city which is not something the council can afford to do, nor would we want to, given the impact on the streetscene”.
  7. The Council went on to say that the Department for Transport was carrying out a national consultation on matters such as pavement parking and the Council had given its support to a national charity’s campaign for a country-wide ban on pavement parking.
  8. Mr X remained unhappy and complained to the Ombudsman.

My findings

  1. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late if the person has known about the matter for more than 12 months and it would have been reasonable for them to have complained earlier.
  2. In my telephone call to Mr X, he said the issue had been ongoing since 2012. I can see no good reason why Mr X did not complain to us earlier and, therefore, I will not exercise my discretion to investigate.
  3. And even if I did exercise my discretion, I would not investigate Mr X’s complaint for the following reasons:
    • Mr X told me he sometimes has to walk in the road when he cannot get past cars parked on the pavement. This is not sufficient injustice to warrant the costs of an investigation;
    • we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. There must be fault in the way the decision was reached. The Council has the power to enforce pavement parking contraventions, not a duty. That means it is for the Council to decide whether to use those powers. The Council has provided cogent and appropriate reasons for not enforcing pavement parking. Therefore, it is unlikely I would find fault in the decision-making process; and
    • Mr X wants the Ombudsman to compel the Council to enforce the legislation. We do not have the power to do this. If we were to find fault, we could only ask the Council to reconsider its decision. And it is unlikely the Council would reach a different outcome at this time. This is because the Department for Transport is carrying out a national consultation on the matter and so it is likely the Council would wait for the outcome of this before reconsidering its position.

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Final decision

  1. I have discontinued my investigation because the complaint is late. In addition, there is not sufficient injustice to warrant the costs of an investigation, it is unlikely I would find fault and I cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman

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