Summary: Miss B says the Council failed to consult or notify her of an application for a dropped kerb and failed to properly consider that application. There is no fault in how the Council considered the application although there were some misleading communications with Miss B. The apology the Council has already given is satisfactory remedy for that.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• failed to consult her or notify her of an application for a dropped kerb that affects her; and
• failed to properly consider the impact the dropped kerb would have.
2. Miss B says the Council’s approval of the application has caused safety issues which affect her.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a Council’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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. The Council’s guidance on applying for a vehicular access (the guidance) says approval is required to create or extend a vehicular access to a property. The property owner can apply. Planning permission is not required unless certain conditions apply. The guidance makes clear it is the applicant’s responsibility to ensure any planning permission is in place as if it is subsequently found to be required the applicant may have to arrange to reinstate the original surface.
9. The guidance says on receipt of the application a Council engineer will visit the site to determine its suitability and will write back to the applicant with the outcome.
10. The pre-application checklist for the application process says an applicant is not permitted to park any vehicles on the vehicle crossing. It says applicants must ensure there is sufficient room on their property so the vehicle does not protrude over the footway/verge when parked.

What happened

11. Miss B lives in a development of seven houses which are accessed via a footpath off a road. In 2020 Miss B’s neighbour applied for a vehicle crossover to allow cars to travel from the road, over the footpath so they could park on the property frontage.
12. The Council’s engineer visited the site and took photographs. The Council initially refused permission as it was concerned about vehicles driving up the public footpath causing a safety hazard. Miss B’s neighbour challenged that decision and provided evidence of a similar vehicle crossing being agreed elsewhere in the Council’s area. Miss B’s neighbour also pointed out the footpath was not used as a thoroughfare as it only provided access to the seven properties and said there was sufficient visibility.
13. The Council’s principal engineer considered the case. He asked Miss B’s neighbour whether all residents affected were in agreement with converting the footpath to a shared use surface and whether there had been any objections on safety grounds. The principal engineer told Miss B’s neighbour if vehicles were to be driven along the surface it would have to be reconstructed to a higher specification.
14. Miss B’s neighbour provided the Council with a copy of a letter signed by all but one (Miss B) of the residents confirming they had no objection to the path being converted to a shared use. The principal engineer asked the County Councillor for his view as well as asking the street lighting team whether they would require any measures to be taken to protect the lighting column on the footpath.
15. The County Councillor did not raise any concerns about the proposal. The Council therefore asked Miss B’s neighbour for a plan showing the position of the dropped kerbs and what garden vegetation, fences and walls would be removed. The principal engineer told Miss B’s neighbour she would have to rearrange for the existing lighting column to be relocated out of the footpath area, towards the existing carriageway. The Council told Miss B’s neighbour she could seek a quotation for the relocation work.
16. Miss B’s neighbour provided the Council with plans and said residents affected were happy to take down their boundary fences to allow clearer access.
17. The Council’s principal engineer visited the site and took photographs. Following that visit the Council wrote to Miss B’s neighbour to say it had approved the application. This was subject to two conditions: adjusting two stop cocks and one cover, along with moving the lighting column from the shared footpath.
18. Miss B put in a complaint about the decision in November 2020. The Council explained it had granted permission following the neighbour providing evidence all neighbours affected by the application had been consulted. In response Miss B pointed out she had not been consulted and did not support the application. The Council therefore contacted Miss B’s neighbour to tell her it would not grant a licence under section 171 of the Highways Act 1980 to allow the vehicle crossover to be created as the permission was dependent on all affected residents being in agreement with the proposal. The Council also told Miss B that.
19. Miss B’s neighbour raised concerns with the Council as the letter from the Council providing permission had only included two conditions and did not refer to the need for all residents to agree with the proposal. The Council consulted the County Councillor and later confirmed to both Miss B and her neighbour that the work could go ahead. The Council explained to Miss B that although she had raised concerns, those concerns were not significant enough to prevent the works from proceeding. The Council apologised for having to correct the information it had given to Miss B about stopping the works earlier that day.

Analysis

20. Miss B is concerned the Council failed to consult her on an application for a dropped kerb before it granted permission. I set out in paragraphs 8 and 9 the process the Council follows when it receives a vehicle crossover application. That process does not require the Council to consult with neighbouring residents. Consultation would only take place if a planning application had been submitted. I am satisfied planning permission was not applied for in this case and this would not have been a matter for the County Council in any case, given it is the district council that considers applications for planning permission. As there was no requirement for the Council to consult Miss B I have no grounds to criticise it.
21. I am satisfied though in approving the application the Council sought evidence from the applicant that affected residents had been consulted. I am also satisfied the Council received a copy of a letter from the applicant showing most of the residents had signed a letter agreeing to the footpath being changed to a shared space. I appreciate Miss B had not signed that letter. However, there is no requirement for the Council to refuse permission when one of the affected residents does not agree. The Council then has to consider whether the application is acceptable.
22. Miss B says the Council, in approving her neighbour’s application for a dropped kerb, failed to consider the impact it would have in terms of safety. Miss B says if the Council had properly considered the application it would have realised when a car is parked on the footpath there is no room for a person to get past and therefore the shared space was not workable. Miss B is also concerned about the properties on the footpath now being in darkness as the lighting column has been moved.
23. I have carefully considered the documentary evidence. This shows the Council initially had concerns about the safety implications of approving a dropped kerb in this location. In fact, the Council refused the application at first on that basis. In those circumstances I can understand Miss B’s frustration when the Council later granted permission for the dropped kerb. The issue for me to consider is therefore whether the Council properly considered the appeal.
24. I am satisfied the Council’s principal engineer visited the site to view the layout on the ground before deciding to approve the application. The Council has not provided me with a copy of any notes kept by the principal engineer at the time. However, when responding to an information request from Miss B in June 2021 the Council referred to the observation notes kept by the principal engineer. Those notes record various issues with the application specifically referring to the position of the lighting column, concerns about visibility being blocked by hedges and the existing construction of the footpath. The notes go on to record the principal engineer was satisfied those issues could be addressed by moving the streetlight, removing the boundary treatments to the gardens to allow for parking and rebuilding the surface to vehicle crossing standard. The principal engineer also recorded his view that as the path only served seven properties, was not a through route for pedestrians and had a mix of low-speed vehicular traffic with low pedestrian movements he considered the application presented low risk.
25. I appreciate Miss B strongly disagrees with that assessment. However, as I said in paragraph 4, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. As I am satisfied a Council officer visited the site and identified measures that would make the application acceptable and an officer followed up with a visit after the permission had been implemented I have no grounds to criticise it. The photographs now provided by Miss B show the applicant has complied with the conditions on the permission and various boundary treatments have now been removed to provide better visibility.
26. In reaching the view that the Council considered the application properly I am aware Miss B is also concerned about the lighting column being moved. Miss B has referred to the fact the properties are now in darkness, with the implications that has for safety. While I understand Miss B’s concern, the Council is under no obligation to provide lighting for properties. In this case I am satisfied the Council required the lighting column to be moved so the width of the shared space was not affected. That is a decision the Council was entitled to reach and it is not one I could criticise.
27. Miss B has raised concerns about vehicles parking on the shared space which she says prevents her walking safely across the footpath. Miss B has provided evidence of vehicles parking on the shared space. I understand Miss B’s concern here. However, granting permission for the vehicle crossover does not provide permission for vehicles to park on the shared space. The permission simply allows the creation of a vehicle crossover so residents can park their cars on their frontages. So, while I understand Miss B’s concerns about cars blocking the shared space, that is not what the Council has approved.
28. I am concerned though that there appears to have been some confusion in the Council’s communications both with Miss B and with the applicant. I am satisfied the Council granted permission for the vehicle crossover with two conditions attached. Those conditions related to the applicant needing to move the lighting column, two stop cocks and one cover. I therefore consider the Council at fault for leading Miss B to believe it had granted permission for the vehicle crossover on the basis all residents affected supported the application. That was never part of the conditions on the permission. In those circumstances the Council gave Miss B incorrect information and then unreasonably raised her expectations about the works not being allowed to go ahead when that was not the case. That is fault. I appreciate the Council corrected that position later the same day though. In those circumstances I consider the apology the Council has already given satisfactory remedy.

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Final decision

29. I have completed my investigation and found fault in part of the complaint. The action the Council has taken is sufficient to remedy the injustice to Miss B.

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Investigator's decision on behalf of the Ombudsman