Summary: Mrs X complained the Council agreed to a planning condition to help her access her driveway, but it has since discharged the condition without the provision of a dropped kerb. We did not find fault with the Council’s decision. We found some fault with the Council’s poor communication with her at some points. The Council has agreed to apologise to Mrs X to remedy this injustice.

The complaint

1. The Council approved a planning application for a nearby development which included a condition requiring a dropped kerb on a new footpath to help Mrs X access her driveway. Mrs X complains the Council has now discharged this planning condition without provision for the dropped kerb. This has caused her significant frustration, distress, and when the footpath is built, she says it will make it very difficult for her to use her driveway.

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The Ombudsman’s role and powers

2. 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 significant injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We also 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)
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 discussed the complaint with Mrs X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. Mrs 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

Law and administrative background

Planning permission

8. Planning permission is required for the development of land. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not. Material considerations relate to the use and development of land in the public interest, and not to private considerations.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Developers must apply to the council to have conditions discharged (approved) by detailing how they intend to meet the conditions. They may also apply for the removal or variation of conditions. The local authority should discharge conditions within eight weeks of accepting the application as valid.

Summary of key relevant events

11. The subject of this complaint is Dover District Council as the Planning Authority, which I refer to as “the Council”. Kent County Council (“KCC”) is responsible for roads and highways in this district.
12. The developer submitted a planning application to build a large number of houses on land near Mrs X’s house. Part of the development included a footpath along Mrs X’s narrow road.
13. The Planning Committee refused the application. The developer submitted an appeal and later withdrew it. The developer resubmitted the application.
14. In early 2021, the Council granted planning permission for the second application, subject to several conditions.

The Planning Condition

15. During the above process, the Council consulted KCC as the local highway authority. Relevant to this complaint, KCC comments included concerns the footpath addition would narrow the road further and could affect access for Mrs X and her neighbour to their driveways. Mrs X objected several times with similar concerns as access was already tight.
16. KCC wrote to Mrs X and suggested the provision of a dropped kerb on the footpath for infrequent overrun for getting on and off her driveway would be acceptable to the highway authority, given the low level use.
17. The developer submitted plans for proposed highway works, covering Mrs X’s road. It included an annotation opposite Mrs X’s house which read “potential to provide dropped kerb with 25mm upstand”. KCC said the development was acceptable, subject to conditions, including the Condition below.
18. I have summarised the main relevant condition Mrs X has raised for the purpose of this complaint, referencing the above plans:
• “The Condition” – before construction started on site, the off-site highway works shown on the [specified plans] would be implemented in line with a detailed highway works strategy to be submitted and approved by the Council. This shall include details of measures to provide a dropped kerb to enable parking to [Mrs X and her neighbour’s property].
19. The decision notice said the reason for this condition was “in the interests in the safe and free flow of traffic on the local highway network”.

What happened – after granting planning permission

20. A Section 278 agreement is between the local highway authority (in this case, KCC) and the developer to ensure work to be carried out on the highway is completed to its standards and satisfaction. It is separate to the consideration of the planning application.
21. At the end of 2022, the developer submitted an application to the Council to discharge the Condition. It included plans showing a footway kerb opposite Mrs X’s house 100mm high, rather than a 25mm dropped kerb. Mrs X contacted the Council to point this out and said it needed amending to comply with the Condition.
22. In early 2023, KCC provided a consultation response to the Council. It confirmed the Section 278 agreement was in place for the off-site highways works. It was satisfied the Condition was discharged.
23. After contact from Mrs X, the Council’s Planning Conditions Officer (“PCO”) said to her it did not accept this as it did not comply with the wording of the Condition. The PCO emailed the developer for it to either: submit drawings with the dropped kerb; or if it could not provide this, it would need to submit an application to vary the condition, which would need approval before the condition could be discharged. The developer submitted an application to vary the condition.
24. A Council Case Officer (a different officer) authorised the Condition could be discharged after looking at the plans and informed the PCO. The PCO advised Mrs X the Council had discharged it. She said the drawings showed a dropped kerb opposite Mrs X’s house, she would still have existing access to her driveway, and there was no objection from KCC.
25. The developer withdrew the application to vary the condition. Mrs X contacted the Council to say the approval still conflicted with the wording of the Condition and the plans available did not show a dropped kerb as stated.
26. The Case Officer reviewed the Condition and responded to Mrs X. They had discussed the Condition with KCC, and KCC was against providing a dropped kerb just to allow a wider turning circle for access to a driveway opposite the footpath. This was due to highway maintenance issues and safety concerns for vehicles and pedestrians. It also said the road width would not change much and would still be sufficient space for vehicles to access the existing driveways.

Mrs X’s complaint

27. Mrs X made a formal complaint. Following this further contact from Mrs X and then considering the broader aim of the Condition, the Council contacted KCC and the developer to discuss possible alternative outcomes, such as the developer resubmitting a condition discharge application with revised s278 details. KCC said it would not seek to change the requirement for a 25mm kerb from a 100mm kerb. It said a 25mm kerb would normally only be used at the front of pedestrian crossing points.
28. Mrs X also said she did not have an open driveway and her fences restricted the entrance, and the Council had not considered this. She said without the dropped kerb and the narrowing of the road, it would be impossible for her to access her driveway safely. The Council responded and said the small loss of road width would be limited. It noted previous submitted plans had annotated drawings of her driveway with tracking for a 4x4 vehicle to enter and exit it, approved by KCC. It acknowledged it was tight but still achievable.
29. The Council concluded it had made the right decision with the Condition and apologised for a lack of clear communication from it to her.
30. In response to my enquiries, the Council said it initially misunderstood the purpose of the dropped kerb when it reviewed the condition discharge application. It said it should have apologised to Mrs X for this.
31. Since Mrs X’s complaint to us, the Council said the developer has recently applied to vary the Condition to change the timings of when off-site highway works are to be in place, and other changes. The Council has not yet made a decision on this. Whether this makes a difference to the planning application is unknown at this point. I have not considered events after Mrs X complained to us in May 2023.

Analysis

The Planning Condition

32. During the planning application process, the Council appropriately sought the comments from KCC (a statutory consultee, responsible for the local highway network). KCC suggested the provision of a dropped kerb opposite would be acceptable to help Mrs X and her neighbour access their driveways affected by the proposed footpath. The Council considered KCC’s judgement on this and added the Condition (which referred to this) to the decision notice. There are no grounds to find fault here.

Discharging the Condition

33. The key concern for Mrs X is the previously agreed works to provide this dropped kerb, as per the Condition, will not be carried out. The Council’s role was to consider if the proposal and information for discharging the Condition was acceptable.
34. The Council was entitled to consider the views of KCC as the responsible authority for highway works. It consulted KCC about the condition discharge application. KCC responded it was satisfied with the s278 agreement and it was sufficient for the Condition to be discharged. The Council took KCC’s positive confirmation into account at the time when it decided to approve the discharge.
35. It then took further action after a review and consideration of Mrs X’s ongoing concerns. It tried to find a solution to satisfy all parties, but KCC maintained its position it would not approve the dropped kerb. The Council considered and accepted this, so the Condition remained discharged. It is not at fault for relying on or placing greater weight on the professional view and technical advice of KCC on key highway matters, including safety.
36. I note there was misunderstanding and incorrect reading of the plans on the Council’s part for some of its reasoning in its decision to discharge the Condition. But it also gave other reasons with this. Therefore, in my view, this is unlikely to have affected the overall outcome because of KCC’s position it would not approve a dropped kerb.
37. I recognise the Council is responsible as the Planning Authority and Mrs X had raised expectations about the Condition for her benefit. The Council considered Mrs X’s views and sought advice from KCC, and it was up to the Council to balance and weigh these when considering its decision. I am satisfied the Council contacted relevant parties, considered the evidence, and then set out reasons and explained why it considered it could discharge the Condition. This is a decision it is entitled to make.
38. The Council also said that while the Condition was related to Mrs X’s access to her driveway, even without a dropped kerb, it decided the proposed footpath (which has not been built) would still allow her suitable manoeuvring space. Mrs X strongly disagrees with this. It is not my role to make judgements on who is ‘correct’ or decide between her view and the Council’s. It considered Mrs X’s concerns about her fences and KCC’s comments on the drawings when it explained its view. This is appropriate.
39. Taking into account all the circumstances, on balance, I do not find fault with how the Council made its overall decision that the Condition could be discharged. Therefore, I have no grounds to question the Council’s decision or professional judgement, no matter how much Mrs X disagrees with it.

Communication with Mrs X

40. It is clear Mrs X received conflicting and contradictory communication at some points from the Council. The Council accepted it should apologise to Mrs X for misunderstanding the purpose of the dropped kerb, but I note Mrs X had already made her position clear a number of times before this point so it should have been aware.
41. The Council also said to Mrs X the plans submitted as part of the discharge application showed a dropped kerb opposite her house. This was not true, and it incorrectly informed Mrs X this. This unnecessarily confused matters for Mrs X. These mixed messages evidenced poor communication by the Council. This is fault. This added avoidable frustration, uncertainty, and distress to her when it dealt with her concerns.
42. I acknowledge the Council has already apologised to Mrs X for some aspects of the above. But it has identified an outstanding apology it said it should give to her, which I consider is appropriate.

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Agreed action

43. By 15 January 2024, to remedy the injustice set out above, the Council has agreed to:
• Formally apologise to Mrs X in writing for its misunderstandings and poor communication with her during the above matters.
44. The Council should provide us with evidence it has complied with the above action.

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Final decision

45. The Council was not at fault for its decision to discharge the Planning Condition. I found some fault with the Council’s communication which caused injustice to Mrs X. The Council has agreed with my recommendation to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman