Birmingham City Council (19 009 353)

Category : Planning > Other

Decision : Not upheld

Decision date : 18 Mar 2020

The Ombudsman's final decision:

Summary: There is no evidence of fault in the Council’s decision that a housebuilder will have to wait for the roads outside the new houses to be adopted before he can apply for dropped kerbs from the highway department.

The complaint

  1. The complainants, who I shall refer to as Mr and Mrs X, complain the Council will not allow works to enable access to new houses they have built until 12 months after the Council highways department adopts the road.

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What I have investigated

  1. I have investigated matters that have occurred from May 2018, i.e. those within 12 months of their complaint to the Council in May 2019. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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

  1. I read the papers put in by Mr and Mrs X and discussed the complaint with Mr X.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. I gave the Council and Mr and Mrs X the opportunity to comment on my draft decision.

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What I found

  1. Mr and Mrs X own a company, which includes the site in this complaint, which a manager runs. They still have the original access to the site, which they currently use.
  2. They explain the Council got planning permission to develop the area around their company, including a new road layout and over 200 homes in 2014. The Council consulted Mr and Mrs X’s company on the planning applications.
  3. In 2015 Mr and Mrs X got outline planning consent to build housing on their site, with full planning permission approved for houses in May 2018.
  4. Mr X explained that they have begun to build the houses, using the existing site access. But, to finish the development they need to construct dropped kerbs from the new estate roads which are under construction. This has involved the purchase of extra land from the Council, which happened in May 2018.
  5. The Council has explained that the developer building the homes is not willing to allow Mr X to alter the highway to construct dropped kerbs. So, Mr X will need to wait until the road is adopted by the Council. In addition, he cannot put in an application to alter the highway until 12 months has passed from the adoption application date. This is because the highway work by the developer is placed on a maintenance period of 12 months before a final inspection is undertaken and formal adoption takes place.
  6. The Council has explained that when Mr and Mrs X applied for planning permission they were aware that they needed the new roads to be formed for them to exist the access to the houses in the current design. They have always been able to access their site via its original access and this is being used for construction of the new houses. Mr and Mrs X say they made their detailed planning application with a changed layout to coincide with the new road layout. They say that technically they do not have access to theirb property because of the removal of the previously adopted road.
  7. Mr X explained on the telephone that he felt the Council should have predicted his need to access the site for development and has failed to ensure he can access the new houses.
  8. I have looked at all the information sent and I can understand Mr X’s frustration that he will be unable to sell the houses immediately, as he will need to wait for the highway to be adopted before he can construct the dropped kerbs.
  9. However, I do consider that Mr X was aware the large scale housing scheme meant that roads would be moved as their houses benefit from the new access. Until the Council adopts the road it simply cannot give highway approval for the works Mr X wants to carry out, so I can find no fault on this point.
  10. Mr X has asked for access from the contractor, before the work is complete. But the contractor has explained that it intends to complete the works in accordance with its contract and does not want to vary the works. The Council has said the contractor took over 6 months to agree the highway specification with the Highways department so it does not wish to change the scheme again. The Council has said that it understands Mr X’s view but it is not in the Council’s interest to allow any work before the highway adoption or during the 12 month maintenance agreement.
  11. I understand Mr X disagrees with the Council. However, I can find no fault in the Council’s actions. Mr X was aware when he applied for planning consent that the houses would not be able to be accessed from his existing access and the Council has set out its terms by which Mr X can gain access to the new houses he is building. If Mr X believes the Council has been unlawful then he can obtain his own legal advice on whether he can pursue a claim. But, my role is to look at the administration of the Council’s decision making process. And, I do not consider there has been fault, it is simply that Mr X disagrees with the Council’s decision.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is not upheld.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr and Mrs X’s complaints before May 2018, about matters that go back to 2013. Mr X has not complained about this issue until now to either the Council or the Ombudsman. This is a late complaint and I have seen no good reason to accept it for investigation now. I do believe it was reasonable for Mr and Mrs X to complain about issues that affected them when they first occurred.

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Investigator's decision on behalf of the Ombudsman

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