Summary: Mr X complains the Council was at fault for wrongly telling him he needed to create a parking area at his property before making a dropped kerb application. And it failed to advise he needed planning permission causing distress and financial loss. We have found no evidence of fault by the Council that it advised Mr X to build a parking area at his property before applying for a dropped kerb and receiving approval. But we found fault as the Council failed to ensure its contractor was aware of Mr X’s need to apply for planning permission. This led to confusion and uncertainty for Mr X. The Council has offered a suitable remedy payment to Mr X, so we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains the Council wrongly told him he needed to create a parking area before making a dropped kerb application to create a vehicle crossover. Mr X says the Council also delayed telling him he needed planning permission to change the use of a grassed amenity space in front of his property before applying for the dropped kerb.
2. Mr X says it led to him create a parking space before the Council considered his dropped kerb application and the Council says it is unlikely to grant planning permission for the change of use. So, Mr X may not have a vehicle crossover and dropped kerb installed to access his parking area. Mr X says this has caused him stress and financial loss. Mr X would like the Council to reimburse him for his costs incurred in building a parking area.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)

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How I considered this complaint

5. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
6. Mr X and the Council 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

Applying for a vehicular crossing

7. The Council’s website says that residents can request a dropped kerb at a cost to enable them to cross the highway/footway to gain access to their properties known as a vehicle crossover. When Mr X applied the website said that planning permission is not usually required for residential properties unless the property has a frontage directly onto a classified road or is a listed building.
8. The applications are dealt with by the Council’s highways contractor (contractor) who will carry out a site meeting to discuss the application. The contractor will prepare a quotation for the dropped kerb/vehicle crossover as it is work in the public highway and will carry out the works if the application is approved.
9. The Council’s terms and conditions when Mr X applied said “Your application will not be approved unless you are able to provide a suitable parking area within your property. To comply with our Luton Local Plan, your parking area must be a minimum of 4.9 metres in length by 2.4 metres in width “. The terms also say “an initial charge will be made to assess the application, if the application is agreed this will result in an estimate for the works”.

Events leading to the complaint

10. This section sets out the key events in this case and is not intended to be a detailed chronology.
11. Mr X’s property does not have any off-street parking. Mr X wanted to turn his front garden into a parking area. Mr X applied for a dropped kerb application in May 2021 and vehicle crossover to his property so he could drive a car across the pavement in front of his house. There is also a large grass amenity space in front of Mr X’s property.
12. The contractor contacted Housing Services who had no objections to the application. An officer from the highway contractor met Ms X at his property in July 2021 for a site assessment. The Council says when the contractor assessed the application it was unaware applicants such as Mr X needed to seek planning permission for the loss of a green space. However, the process still required the contractor to ask for permission for the dropped kerb from the Council, Highways, Parks or Housing services depending on who maintained the grassed verge.
13. The contractor says its officer cannot recall what was said to Mr X at the site visit being two years ago. The officer confirmed they would normally say the applicant needed to construct the hardstanding before works to provide the drop kerb can proceed. But the applicant should not do anything until they received the estimate (and approval) from the contractor for the dropped kerb works. The Council says the contractor has not done a draft estimate on the file and so Mr X has not received an estimate (and approval) for the application.
14. Mr X says he was not told this at the site meeting. Rather he was told to make a driveway/hardstanding and when done to get an estimate for the dropped kerb works. Mr X says he was told when the work to remove the grass verge could start. Mr X says he had the hard standing built to provide a parking area after the contractor’s visit.
15. In July 2021 a senior officer for the contractor saw the site assessment and double checked with Parks service to ask permission for the grass verge. An officer chased the Parks service for a response at the end of July 2021. The officer chased Parks and Housing for a response in October 2021. The officer emailed Mr X to say he was chasing the services for a response whether they gave permission for construction over the grass verge. The officer told Mr X that without this permission the Council could not issue him with a quote for the works.
16. On 27 October 2021 the officer told Mr X Housing services confirmed it looked after the grassed area and Mr X needed planning permission to change the use of the grass verge. The officer advised Mr X to contact Planning or Housing services for advice and information on what to do. The officer apologised for the time taken but the permission was out of the control of the contractor. It could not provide a quote for the dropped kerb works without approval to remove the grass verge.
17. Mr X was advised to contact Housing services to submit a planning application. Mr X contacted the officer at the contractor in November 2021 to see if it had been given permission for the grass verge. The officer checked whether a planning application had been submitted to convert the grass verge for a vehicle crossover.
18. A planning officer advised the Council had not received a planning application as it was not a planning matter because the road where Mr X lived was a classified road. Mr X asked for clarification as he had been advised he needed planning permission. Planning services confirmed Mr X needed planning permission to change the use of the amenity area in front of his property to a driveway. But the Council would normally resist any further changes of use given the importance of such open spaces. The Council recommended Mr X seek pre-application advice first if he wished to apply.
19. Mr X remained unhappy about needing to apply for planning permission and contacted the contractor in February 2022. Council emails show Planning services advised again that Mr X did not need planning permission as it was not a classified road. So, Mr X asked for a quote for the dropped kerb works and when the Council could start the works. Planning services confirmed Mr X did need to apply for planning permission for the change of use of the grass verge. And advised Mr X how to make an application and what was needed. This included a site location plan, plus block plans from an architect showing the dimensions of the land needing to undergo a change of use.
20. Mr X contacted the officer at the highways contractor in June 2022 to ask when the work for the dropped kerb and hardstanding would start and he had not been sent any costs yet. The officer asked if Mr X had applied for planning permission yet as advised in February 2022. The officer said Mr X’s dropped kerb application was on hold. Mr X explained he was unhappy at being told to employ an architect and the Council should assess the land.
21. Mr X complained to the Council in June 2022 about the way it had dealt with his dropped kerb application. Mr X said he had been given false information by the Council and told to convert his front garden to block paving before works to the grass verge for a crossover could start. Mr X said he had done the works costing £3800 and he could not use the parking area. Mr X said it had affected his mental health and wanted the Council to refund his costs or grant planning permission free of charge for the grass verge to be removed.

The Council’s response to Mr X’s complaints

22. The Council explained how its contractor had dealt with Mr X’s application. And the information given at the site assessment not to do anything until Mr X had an estimate and the need to seek permission to change the grass verge. The Council accepted that when Mr X applied its contractor was unaware of the need to apply for planning permission for the removal of the grass verge to facilitate a crossover. The Council has lost green space over the years and was now trying to preserve it.
23. The Council found during the lengthy process in dealing with Mr X’s application he needed to seek planning permission before it could grant his dropped kerb application. However, the advice from the planning services was the application was unlikely to be granted due to the loss of green space. So, it might be risky for Mr X to do as it would incur more expense and unlikely to be granted.
24. The Council responded to Mr X’s comment he had built the block paving already. The Council said there was evidence applicants are advised to do this before the Council can construct a crossover, but not to do this until applicants have been granted approval for a dropped kerb. The contractor says Mr X did not mention converting the garden to block paving between October 2021 and February 2022. Mr X was advised to seek planning permission but had not done so.
25. The Council considered at best there had been a communication issue and Mr X may not have understood the process. And at worst he had decided himself to convert the front garden to a block paved driveway. The Council accepted a lack of clarity about the need for planning permission in Mr X’s case. It also accepted the dropped kerb application process been protracted and confusing for Mr X. This has been due to a backlog of applications created during the Covid-19 pandemic. But it did not accept liability for Mr X’s costs of converting his garden to blocked paving as he had been told not to do anything until he had an estimate (and approval). However, the Council offered Mr X a £500 payment as a gesture of goodwill in recognition of the delays and confusion caused about the need for planning permission.
26. The Council advised Mr X he was still free to apply for planning permission for the vehicle crossover and could offer him advice about doing so.
27. Mr X contacted the Council in May 2023 asking for help completing the planning application. Mr X submitted a pre application enquiry in May 2023. The enquiry was withdrawn in June 2023 due to lack of information from Mr X.
28. The Council confirms it was considering the issue of dropped kerb application and the need for planning permission for the loss of public open space in 2021. It amended the terms and conditions of applying for a dropped kerb and on its website in 2022. It now includes the possible need for planning permission if an applicant must drive over public open space to access their property.

My assessment

29. The Council’s terms and conditions at the time of Mr X’s application for a dropped kerb say an applicant needs to be able to provide an area of a suitable size within property to have the application approved. This means the property must have sufficient space to be able to lay a hard standing. It does not say the hard standing needs to be built before application is considered and approved.
30. I consider that Mr X appears to have misunderstood the terms and conditions. The officer confirmed they would normally advise an applicant not to do anything until they received the estimate for a dropped kerb and approval from the Council. The applicant would then need to build the hard standing and once done the Council would then install the dropped kerb. There is no evidence of fault by the Council that it advised Mr X to build the hardstanding before making an application or receiving approval.
31. In addition, the section on payments says an initial charge will be made to assess the application. If the application is agreed this will result in an estimate for the works. If the estimate is accepted full payment will be required before the works can start. The Council confirms its contractor did not draw up an estimate for the works so Mr X has not had this. There is therefore no evidence the Council had approved Mr X’s application. The documents show Mr X did the works without receiving an estimate or written approval of his application. So, I consider Mr X made the decision to carry out the works without receiving approval for his application and is therefore responsible for his own costs of doing so.
32. The documents show there was an issue between the Council and its contractor about a lack of awareness over the need for Mr X to apply for planning permissions due to the public open space in front of property. This is fault by the Council as it should ensure its contractors are aware of its policies. The fault has caused an injustice to Mr X through confusion and uncertainty over his application Mr X which the Council has accepted.
33. The Council has offered Mr X a goodwill payment of £500 in recognition of the confusion and uncertainty caused. This is in line with our Guidance on Remedies, and I consider it is a suitable payment for the Council to make to Mr X to recognise the injustice he has been caused through the confusion and uncertainty. Therefore, I do not consider that any further investigation will lead to a different outcome for Mr X. It is for Mr X to decide if he wishes to accept the Council’s offer of £500.

Final decision

34. I have completed my investigation. There is no evidence of fault by the Council that it advised Mr X to build a parking area at his property before applying for a dropped kerb and receiving approval. But there is evidence of fault by the Council as it failed to ensure its contractor was aware of Mr X’s need to apply for planning permission. This led to confusion and uncertainty for Mr X. The Council’s offer of a £500 payment to Mr X is a suitable remedy in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman