The Ombudsman's final decision
Summary: We will not investigate this complaint about whether the Council has the right to enforce parking restrictions on private land as ultimately this can only be determined by a court and/or London Tribunals.
The complaint
Mr X complains the Council is carrying out unlawful parking enforcement on land that is not adopted as public highway and which he has leasehold access rights to. This is impacting on Mr X’s access and enjoyment of his property at the location. Mr X wants us to direct the Council to withdraw its enforcement policy and to confirm his legal rights as a leaseholder.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has said that it has the right to enforce parking restrictions on the land due to a section 106 (S106) agreement under the Town and Country Planning Act 1990. The Council said that this grants it the responsibility for maintaining the land as a public open space and that it interprets the agreement as supporting enforcement to maintain the safe and lawful use of the space.
Mr X considers the Council’s enforcement activity conflicts with the S106 agreement and his access rights as a leaseholder.
The Council has considered the situation and given Mr X its position. I recognise Mr X disputes this, but his complaint does not point to there being fault in the consideration rather a difference of opinion in the assessment of the legal status of the land. There are not grounds for us to investigate if it is unlikely we will find fault in the Council’s consideration.
Additionally, we will not investigate as we cannot achieve the outcome Mr X seeks as ultimately the land status issue and Mr X’s legal rights as a leaseholder are matters that can only be decided by a court. It is reasonable to expect Mr X to take such action for the determination he seeks.
In respect of any parking notices the Council might issue to Mr X, he will have the right to challenge these on appeal to independent adjudicators at London Tribunals. They can decide if the notices are valid or not.
For these reasons, we will not investigate.
Final decision
We will not investigate Mr X’s complaint because it is reasonable to expect him to resort to court action for the determination he seeks.
Investigator's decision on behalf of the Ombudsman