The Ombudsman's final decision
Summary: Mr X complained the Council has failed to take appropriate or effective action to control unauthorised and dangerous parking or enforce parking restrictions at a commercial estate. Mr X also complains the Council has failed to maintain the estate and it is now in a state of disrepair from over grown vegetation. There is no evidence of fault in the way the Council has responded to Mr X’s concerns about parking on the commercial estate.
The complaint
The complainant, whom I shall refer to as Mr X complained the Council has failed to take appropriate or effective action to control unauthorised and dangerous parking or enforce parking restrictions at a commercial estate. Mr X also complains the Council has failed to maintain the estate and it is now in a state of disrepair from over grown vegetation.
What I have investigated Mr X has complained to the Council about on the commercial estate since 2018, but my investigation will only focus on events in the 12 months prior to Mr X complaining to the Ombudsman.
The Ombudsman’s role and powers
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) 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).
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
As part of the investigation, I have: considered the complaint and the documents provided by Mr X; made enquiries of the Council and considered the comments and documents the Council provided; and 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
Mr X has leased a business unit on a commercial estate from the Council for a number of years. The terms of his and other tenant’s leases include restrictions on parking and there is a parking permit scheme in operation for the communal parking areas. The Council has contracted an external company (Company 1) to enforce the parking permit scheme.
Mr X complains the Council has failed to enforce either the terms of the leases, or the parking permit scheme. This has allowed dangerous and inconsiderate parking across the commercial estate including on the roads. Mr X says the parking situation has meant that he has also had to break the terms of his lease in order to park outside his unit.
In October 2021 Mr X sent the Council photographs of the ongoing parking issues on the estate. He pointed out that vehicles were not parked in spaces or were parked ‘nose in’ so that two vehicles could utilise spaces designed for one vehicle. As he had repeatedly reported problems which the Council has not dealt with he asked for the matter to be treated as a formal complaint.
An officer, Officer 1 confirmed it had contacted the company it considered most likely to be responsible for the parking to advise it was not allowed. Officer 1 also confirmed they were visiting the site the following week and would speak with Company 1. It also provided details of the Council’s complaints procedure.
In early February 2022 Officer 1 visited the site again to hand deliver a letter to Mr Y and Mr Z, leaseholders of units close to Mr X’s regarding the breaches of parking restrictions. Officer 1 advised Mr X that Mr Y and Mr Z had confirmed they would no longer park in front of Mr X’s premises or double park on the entrance road.
Within a week of this visit, Mr X provided Officer 1 with a photograph of cars parked on the hardstanding in front of his premises. Officer 1 confirmed they were meeting with Mr Y and Mr Z again and would raise this issue with them.
Later that month Mr X provided further photographs of the ongoing problems, including vehicles parked outside his premises. Officer 1 confirmed they would raise the issue again. They also confirmed they had checked on a couple of occasions over the previous week and noted there was noone parked in front of the roller shutter door of Mr X’s premises.
Officer 1 acknowledged Company 1 were not often at the site but explained that they would not ticket vehicles between 8pm and 8am as cars may have been recovered overnight to garages on the estate. Mr X asserted cars were constantly parked on the estate overnight without the necessary permits. He suggested Company 1 could visit at night and record the registration numbers of vehicles without permits to identify those which had been recovered overnight and those which had been parked for more than 24 hours.
Officer 1 agreed to raise this with Company 1 but considered it unlikely this would be implemented. They also noted that there was clear access to Mr X’s loading door each time they had visited the site in recent months and hoped this issue had improved.
Mr X provided further photographs of three vehicles parked in the two spaces front of his premises. This meant he had to park his vehicle in front of the loading door, which was contrary to the terms of his lease. Mr X was unhappy Company 1 did not police the permit system. He questioned what the Council would do about multiple cars parked in spaces intended for only one or two cars, cars parked on double yellow lines and cars parked without permits.
Officer 1 advised they had not put Mr X’s suggestion to Company 1 as the parking problems were currently exacerbated by garages on the estate having multiple cars awaiting parts due to issues in the supply chain. Officer 1 also noted that the parking situation did not breach the Council’s covenants. While it was permitted to limit the number of parking spaces, the Council was not compelled to.
In May 2022 Mr X made a formal complaint about parking on the estate and the Council’s failure to enforce the restrictions and parking permit scheme. He asserted Officer 1 was no longer willing to try and resolve the longstanding issues and Company 1 did not effectively police the permit scheme. Mr X was concerned someone would get hurt or property damaged if the parking issues were not resolved. He asked the Council to ensure all tenants abided by the terms of their leases.
The Council’s response noted Officer 1 had tried to rectify the situation by instructing Company 1 to police the estate via the parking permit system. It was satisfied this had improved the situation but acknowledged Mr X had still had issues with vehicles being parked in front of his loading door. The Council confirmed Officer 1 had written to all of the tenants in April 2021 to remind them they were unable to park to the front of other tenants’ loading doors. It noted it had not received any reports of further parking in front of Mr X’s loading door since that time.
In addition the Council noted the Health and Safety Risk Assessment and Action Plan carried out in December 2020 assessed the risk around traffic management as ‘2 – Tolerable Risk’. The assessment also confirmed compliance with standard.
As Mr X still had concerns about parking on the estate the Council suggested installing drop down bollards in his parking spaces. This would act as a physical barrier to other tenants parking there.
Mr X was not satisfied with the Council’s response and asked for his complaint to be considered further. He disputed that Company 1’s actions in reissuing parking permits in a different colour had rectified the situation. He also asserted that Company 1 did not visit the estate either during the day or at night to police the scheme. Mr X was concerned the Council was turning a blind eye to tenants breaching the leases rather than trying to rectify the problems.
Mr X noted the risk assessment was carried out during a national lockdown so was not representative of the normal level of activity within the estate. In relation to the suggestion of drop down bollards, Mr X noted this would be contrary to the terms of his lease. He suggested the Council consult tenants for their views on the parking issues and the general condition of the estate.
The Council acknowledged the appearance of the estate was not up to the required standard and confirmed it was implementing a new grounds maintenance regime to address this. It also confirmed it would instruct Company 1 to enforce the parking restrictions more effectively in place in accordance with the signage on the estate.
In addition, the Council told Mr X it was investigating the possibility of introducing double yellow lines to a section of road not currently covered by them. This would ensure the Council could enforce that permit holders using spaces along that road could access and exit the spaces.
Mr X remains dissatisfied and has asked the Ombudsman to investigate his complaints. He has also continued to raise concerns about the parking on the estate with the Council.
In August 2022 the Council advised Mr X Company 1 would continue to enforce the communal parking areas more vigorously but for the time being it would allow parking on the estate roads. It acknowledged this meant tenants could be seen to be contravening the terms of their leases, but the Council considered this was a pragmatic approach. The Council confirmed it would keep the situation under review. It also confirmed Company 1 were patrolling the estate at least three times a week.
The Council also confirmed that the leases were not explicit regarding the direction in which vehicles are parked. It had no issues with vehicles parking sideways to allow more cars to potentially be parked, as long as it was safe to do so. The Council again said it was trying to be pragmatic in allowing this. It also noted that the Council as landlord was not compelled to enforce the terms of the leases.
To address the appearance of the site, the Council commissioned external contractors to carry out a large scale cutback of vegetation on the estate and a monthly maintenance regime is in place for the growing season.
Analysis It is not the Ombudsman’s role to decide how, or the extent to which, parking restrictions on the commercial estate should be enforced; that is the Council’s job. We can only consider whether the Council has assessed the parking situation and Mr X’s concerns and reached a reasoned decision.
The Council accepts there are vehicles parked on the estate which breach the terms of the leases for the commercial units, but has decided not to enforce against this. This is a decision the Council is entitled to take. It is not required to take enforcement action. Similarly, it has instructed Company 1 to enforce the parking permits scheme in communal parking spaces but not on the roads. Again this is a decision the Council is entitled to take.
In addition, provided it is safe to do so the Council has not taken issue with vehicles parking sideways in spaces to maximise the use of the space. Mr X disagrees but the Council has visited the site to view the parking and has taken these pragmatic decisions to assist the businesses on the estate.
I also note and welcome that the Council has confirmed it will keep the situation under review.
In order to address Mr X’s concerns about the parking spaces in front of his unit the Council has suggested installing drop down bollards to prevent anyone else parking there. The Council has since confirmed that as leaseholders have the right to cross over the hardstanding of other units this would not be possible. It would require all of the leases to be amended by mutual consent. It is unfortunate the Council proposed a solution which would not in fact be possible, but I do not consider this has caused Mr X an injustice as he immediately rejected the suggestion Having acknowledged the appearance of the site was not up to standard, the Council has also taken action to improve this and there is now a maintenance regime in place. Mr X is disappointed that the regime is only for the growing season. I consider this is an appropriate response by the Council and is to be welcomed.
Final decision
There is no evidence of fault in the way the Council has responded to Mr X’s concerns about parking on the commercial estate.
Investigator's decision on behalf of the Ombudsman