Summary: Mr X complains the Council failed to consider accessibility for people with disabilities when assessing the planning application for the housing development where he lives and to ensure the footpaths were built according to the planning permission. We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains the Council failed to ensure the housing development where he lives has a disabled access way and footpaths suitable for wheelchair users. Mr X says the footpaths have not been built according to the planning permission. And the lack of access for disabled people causes him distress as he has mobility issues.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• 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, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

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

3. 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

4. I considered information provided by Mr X and discussed the complaint with him on the telephone. I read documents the Council provided in response to our enquiries. I also considered information available on the Council’s planning portal.
5. 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

6. Mr X bought his property on the housing estate about seven years ago when it was newly built. Mr X says when he first moved to the development, he could walk without any difficulties, but this changed in more recent years due to mobility issues. Mr X says he finds it difficult to walk along the footpaths as they are narrow and obstructed. And he must walk among traffic on the development.
7. Mr X complained to the Council about his concerns and the Council’s failure to ensure the housing estate had disabled access ways. Mr X said the footpaths were not suitable for wheelchair users or built according to the planning permission.
8. The Council responded to Mr X’s concerns. It explained the landowner submitted an outline planning application to develop the site development about 12 years ago. The application sought permission for the general principle of developing the site and a broad outline of what was proposed. The Council drew up a planning report on the proposal. As part of the report, it looked at accessibility and inclusivity on the site.
9. The Council granted planning permission subject to planning conditions and required a reserved matters application to consider the details of the scheme. The planning conditions included the landowner providing an accessibility scheme, and the levels of buildings, roads, and footpaths. And one to ensure all the dwellings complied with the Council’s Lifetime Homes Standard with 10% being suitable for people using a wheelchair.
10. The landowner submitted the reserved matters application a few years later. The Council considered the application. The planning report on the application noted access to the site would include a pedestrian access and a shared road scheme for pedestrians, cyclists, and cars. But priority would be for pedestrians and cyclists. The Council said the overall access to and from the site would be according to its design guidelines.
11. The Council was satisfied the landowner met the condition on levels of buildings, roads, and footpaths. But not the condition on accessibility which ensured the houses would be built to the planning policy then in place with the highest level of accessibility and inclusion. This included the accessibility strategy setting out the public areas of the site, residential buildings being accessible and some being suitable for wheelchair users. The Council imposed this requirement as a condition again on the reserved matters application.
12. The Council says there was a change in planning policy while it was drawing up the planning conditions as the requirement on the Lifetime Homes Standard moved to be part of Building Regulation needs. This meant the focus of assessment became on the houses rather than on the public areas. It accepts this resulted in a reduced level of scrutiny about the public areas. But the Council was satisfied it had fully considered the proposal when it determined the original and reserved matters applications. And the proposal met the requirements of accessibility legislation and policy in place at the time.
13. The Council’s enforcement officers inspected the footpaths of the housing development following Mr X’s complaint. The officers found some footpaths had vegetation encroaching on to them restricting pedestrians. And there were some vehicles parking and overhanging footpaths resulting in a narrower space for pedestrians to use.
14. The officers found the footpaths measured 93 to 98cm in width so were slightly less than the 1m width approved in the plans. The Council confirms it allows a margin of error of 10 to 15% on measurements on planning applications. This would be between 10 to 15cm in this case. The Council considered the discrepancy in width in this case was a minor breach of planning control because it was within the margin of error allowed. As such, the Council did not consider it expedient to take any action.
15. The Council acknowledged that if there had been greater input from highway officers when it was discharging the condition on public areas it may have led to a wider footpath being provided. But could not say for certain if that would have happened in this case. This was because the guidance/best practice in place at the time enabled variations in footpath width. The variations depended on the nature of street particularly in shared spaces and low traffic streets such as those in the housing development.
16. The Council explained that it would now have difficulties in taking any action over the concerns raised by Mr X. This was due to the passage of time in this case as the planning process started over 10 years ago. So, there was limited scope for review or a challenge to the historic decisions. In addition, the road Mr X lives on within the development is not publicly adopted highway, so the Council is not responsible for its maintenance, enforcement, upkeep, or alteration. Neither can the Council intervene as the development has been built according to approved plans (subject to acceptable margins or errors).
17. The Council says it also cannot intervene to make further alterations, any highway enforcement needed, the control of overgrown vegetation or vehicles parked such that they overhang the pavement. The Council confirms this is the responsibility of the developer and landowners. The developer and landowner still have responsibilities to make reasonable adjustments according to disability legislation so has advised Mr X to contact them about his concerns.

My assessment

18. The Council explained the background to the planning applications for the housing development. There is no evidence of fault in the way the Council considered the planning application in terms of accessibility for people with disabilities. This is because the Council’s documents show it considered accessibility legislation and policies in place at the time it determined the applications. The evidence shows the Council imposed planning conditions including those to ensure an accessibility scheme and requirement to meet the lifetime homes standard.
19. The documents show the Council consider the roads scheme within the housing development which were proposed to be a shared spaces and low traffic streets. The information about the type of road scheme would have been available to Mr X both visually and through a local authority search when he bought his property. So, it will have been for Mr X to decide if he wished to purchase a property with this type of road scheme.
20. The evidence shows the Council considered the details of the footpaths in the development and approved the plans for a width of 1m. The Council accepts the footpaths have been built at less than this width. Councils can take enforcement action if they consider there has been a breach of planning control. But councils have discretion whether to take enforcement action or not.
21. In this case there is no evidence of fault in way the Council considered Mr X’s concerns about the width of the footpaths and whether to take any enforcement. This is because the documents show the Council investigated Mr X’s concerns and officers visited the site. It considered the footpath widths were within the margin of error for planning applications and so decided it would not take any enforcement action if aware of it at the time. While Mr X may be disappointed with the decision it is one the Council is entitled to make.
22. The Council provided a detailed response to Mr X’s concerns and investigated the planning background to the case. I consider the response is thorough and I do not consider we could add anything to the Council’s investigation. The Council advised that the roads within the housing development are not publicly adopted highway. This means it cannot intervene, make any alterations, or carry out enforcement action regarding the footpaths, or their maintenance. Mr X will need to contact the developer or landowner about his concerns. As the Council has no powers to resolve Mr X’s concerns, I do not consider any further investigation will lead to a different outcome for Mr X.

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Final decision

23. I have completed my investigation. There is no evidence of fault in the way the Council considered planning application for the housing development where Mr X lives in terms of accessibility for people with disabilities. There is also no evidence of fault in the way the Council considered whether to take enforcement action about the width of the footpaths in the development.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman