The Ombudsman's final decision
Summary: There was no fault with the Council’s actions leading to its decision not to take enforcement action. There was no fault with the Council’s decision to issue parking permits to students occupying a development near Mr X’s property. This was in accordance with the Traffic Regulation Order in place in the area.
The complaint
Mr X complained the Council failed to control parking in an area around new student accommodation. Mr X said the Council is: issuing parking permits to students even though its traffic report said it would not.
not taking enforcement action against the developer for failing to submit a Management Plan and the Council approving it before the students occupied the building. This was pre-occupation Condition 11.
What I have investigated I have investigated: the highways issues around the management of Traffic Regulation Order and permit applications and how the Council has enforced the alleged breach of planning conditions around the management plan.
The Ombudsman’s role and powers
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) The original planning application this complaint relates to was refused by the Council in 2017 and agreed on appeal in 2018. However, Mr X was not aware of the issues until the building was occupied in September 2021. Therefore, the complaint is in time.
We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Planning Inspectorate. (Local Government Act 1974, sections 25 and 34A, as amended) Therefore, I cannot look at the matters surrounding the decision to approve the application in 2018 as the Planning Inspectorate is not within our jurisdiction.
If we are satisfied with an organisation’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
I considered Mr X’s complaint and spoke to him about it.
I also considered the Council’s response to Mr X and to my enquiries.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation Traffic Regulation Order (TRO) There is a traffic regulation order that relates to the residents parking permit zone central to Mr X’s complaint.
Paragraph 1.30 explains eligibility criteria regarding those residing at the new development. It states that students who occupy the premises for more than 40 weeks of the year. Students of the development subject to Mr X’s complaint have a 52 week tenancy agreement.
Paragraph 31 states that, in the case of sites in the zone that are redeveloped, the entitlement does not exceed that which existed prior to the site being redeveloped so there is no change in the maximum number of permits that can be issued. In the case of this site, this equals 16 permits.
Planning enforcement Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59) What happened
Background
The Planning Inspectorate approved a planning application for student accommodation near Mr X’s property in 2018. The permission was subject to planning conditions. Condition 11 required the applicant to submit an updated management plan to the Council for approval before any students occupied the building. It stated the management plan should include measures relating to traffic and parking.
Although the condition did not go into detail, the Inspector referred to the existing resident parking permit scheme in his decision letter. He stated that parking pressures could be adequately controlled through an existing residential parking scheme which would not be available to students. This was incorrect. The Inspector had based this point on the initial committee report and had failed to take into account the update paper or the specifics of the TRO which showed that students were eligible to apply for permits.
The applicant submitted a draft management plan alongside the original application which was considered by the inspector. This stated that students could face a termination of their tenancy if they parked a vehicle on the premises or within the vicinity of the premises.
In May 2021, the Council approved revisions to the scheme approved on appeal. Condition 11 remained the same.
In August 2021, the applicant submitted the management plan to the Council together with an application for the discharge of conditions (specifically Condition 11). This final management plan stated that students could face the termination of their tenancy if they parked on the premises or within the vicinity of the premises without a valid residents parking permit.
In September 2021, students began to occupy the development.
Enforcement In September, local residents raised concerns that students had moved into the building and were parking on the road, causing congestion and noise. The Council’s parking team monitored the situation and issued parking fines where necessary. The Council review the parking and permit issue, related to the discharge of Condition 11 application.
Upon visiting the site, the Council observed students were living there. It acknowledged the developer was in breach of five pre-occupation conditions, including Condition 11.
Over the following months, the Council was in regular contact with the developer. The Council actively monitored the development throughout the construction period and intervened when appropriate. At the time of Mr X’s complaint, the discharge of Condition 11 was still pending.
The Council explained that discussions were ongoing with the developer. These were specifically about the wording of the tenancy agreement referred to in the management plan. The Council considered the developer should revert to the original wording that students could face the termination of their tenancy if they parked within the vicinity of the premises (omitting the reference to resident parking permits). The developer would not agree to this.
Update In July 2022, the Council approved the management plan and discharged Condition 11.
My findings
Resident parking permits The initial officer’s report incorrectly stated that residents of the new development would not be eligible for resident parking permits. The draft management plan supported this by stating that students could not park in the vicinity of the premises without risking their tenancy.
The officer’s mistake was corrected by way of an update paper before the recommendation was presented planning committee and before the appeal. Therefore, I do not consider the Council’s actions to amount to fault.
The fact the Inspector did not properly consider the update paper or the specific wording of the TRO is not something I can investigate as the Planning Inspectorate is outside of our jurisdiction. However, on balance, it would seem unlikely that this would have affected the Inspector’s decision as the traffic issues were not central to the Council’s reasons for refusing the original application.
The correct policy is that the previous development of four houses were entitled to a total of 16 permits and therefore future occupants were able to apply for the same number of permits.
The TRO specifies the entitlement to resident parking permits. This includes students with tenancy agreements of 40 weeks or more.
The information above meant that a management plan referring to a tenancy agreement restricting the students’ entitlement to parking permits would not be enforceable.
The Council was not at fault for agreeing the updated management plan or for issuing parking permits to students.
Planning enforcement From the evidence I have seen, the Council acted upon reports of alleged breaches of planning control. It visited the site and negotiated with the developer until the matter was resolved.
The Council acknowledged the developer had breached several conditions by students occupying the site before the conditions were discharged. The Council decided it was not expedient to take formal enforcement action against these breaches. Enforcement action is discretionary, and this was the Council’s decision to make. I have found no fault with this.
Final decision
I have completed my investigation. There was no fault with the Council’s decision not to take enforcement action or with the decision to issue resident parking permits to students.
Investigator's decision on behalf of the Ombudsman