Summary: Mrs X complains that the Council is wrong to refuse her request for a parking permit. She says if she had known the development was ‘car-free’, she would not have accepted the Council’s offer to house her there. Mrs X says having a car would make life easier. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council will not allow her to request a resident’s parking permit. She says the Council is wrong to say that a legal agreement prevents her from having a resident’s parking permit.
2. Mrs X says she was told when she moved in that she would be able to park but has since found out she cannot get a parking permit. She says she has been denied the option of making an informed decision as to whether or not she wants to live in a ‘car-free’ development. She says if she had known this when she was offered the property, she would not have accepted it. She says a car would make her life a lot easier: in transporting her child to and from school; and travelling to help her mother.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation and court ruling, set out below.

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What I found

What should have happened

8. Often when new residential buildings are built, councils use certain laws to make sure that residents of those buildings are not allowed to apply for parking permits. This is to encourage residents to go ‘car-free’ for lots of reasons, including environmental reasons. These new developments are usually called ‘car-free’ developments.
9. Some councils used section 106 of the Town and Country Planning Act 1990 to prevent residents applying for parking permits. In a Court of Appeal case (R (Khodari) v Royal Borough of Kensington and Chelsea Council and another [2017] EWCA Civ 333), the Court ruled that councils could not use section 106 for this purpose. This is because the Court found that applying for a parking permit was not a use of the building.
10. However, the Court found in that case that the agreement had also been made under section 16 of the Greater London Council (General Powers) Act 1974, so it was enforceable. As a result, councils in Greater London may impose parking permit restrictions.

The deed for the residential development

11. The residential development’s deed, dated 2006, says it was made in accordance with section 106 of the Town and Country Planning Act, section 111 of the Local Government Act 1972, and section 278 of the Highways Act.
12. The deed also says it was made in accordance with:

“… all other powers enabling in that behalf with the intent that the terms hereof will be planning obligations so as to bind the land as hereinafter provided and shall be enforceable by the Council.”

13. The deed says that no residents or occupiers will be able to apply for a parking permit.

What happened

14. In 2008, Mrs X moved into a new residential development. This is a housing association property.
15. In October 2020, Mrs X asked the Council for a parking permit.
16. The Council said it would not issue a parking permit for Mrs X. The Council said it would primarily use its powers under section 111 of the Local Government Act 1972 to enforce this. It said it had other legal powers it could also use to enforce this.
17. Mrs X told the Council her address was listed as ‘car-free’ and that it had imposed this restriction based on planning obligations (under section 106 of the Town and Country Planning Act). She said the Court of Appeal (in the Khodari case) ruled that councils could not use section 106 to enforce not giving residents parking permits. Ms X said the Court ruled that councils had to use section 16 of the Greater London Council (General Powers) Act otherwise the Council could not impose restrictions on parking permits.
18. The Council replied, saying it would not agree to give Mrs X a parking permit for the reasons already given.
19. Mrs X then complained to the Ombudsman.

Analysis

20. Mrs X says the Court of Appeal’s ruling in the Khodari case says councils cannot enforce agreements made under section 106 of the Town and Country Planning Act (not to give residents parking permits) unless those agreements are made in accordance with section 16 of the Greater London Council (General Powers) Act.
21. Mrs X says the deed for her building does not mention section 16 of the Greater London Council (General Powers) Act. She says the Council cannot, therefore, enforce the agreement.
22. In this case, the deed was made in accordance with several laws (see above) and “all other powers” available to the council. The Court of Appeal’s ruling on the Khodari case said that councils could not use section 106 agreements to enforce no parking permits for residents. However, the Court did not explicitly say councils could not use “all other powers”.
23. Unless courts rule otherwise, the use of the wording “all other powers” should be considered to include section 16 of the Greater London Council (General Powers) Act. I therefore find that the Council is entitled to use “all other powers” to enforce the restriction on parking permits for residents of Mrs X’s building.
24. For this reason, I find the restriction is valid and therefore do not find the Council at fault. The fact that the deed refers to section 106 of the Town and Country Planning Act does not automatically make the deed unenforceable.
25. We cannot decide the law, that is a matter for the courts. Interpretation of the restrictions on parking permits would be a matter better resolved in court and is not for the Ombudsman. Therefore, I cannot consider this further. It is open to Mrs X to take this matter to court if she wishes to pursue it.
26. Mrs X says when she moved into the building in 2008, she was told she could park there. She says she would not have accepted the Council’s offer of housing in the building if she had known it was ‘car-free’.
27. I cannot say what Mrs X was told in 2008 or by whom. The Council does not have a copy of the property’s advert from that time. However, I have seen a copy of the office form request in the Council’s records which sets out how the property was described/advertised.
28. This evidence shows that the marketing information on the website and the newsletter was to say there would be no parking. I find that the evidence supports that this property was advertised as a ‘car-free’ development. For this reason, Mrs X would never have been allowed to apply for a parking permit while living at this address.

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Final decision

29. I have completed my decision and I do not uphold Mrs X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman