Decision : Upheld
Decision date : 16 Jul 2021
The Ombudsman's final decision:
Summary: Mr B complained that the Council had failed to respond properly to his attempts to find out whether he could construct a safe access from the nearest road to his property. We find the Council could have responded more fully in early 2021, but we consider that Mr B could have established the difficulties with access when he purchased the property and should seek legal advice to resolve the situation now.
- Mr B complained that Wakefield City Council (the Council) failed to provide any solutions or constructive advice regarding the provision of safe access to the front of his property. This caused him inconvenience and distress as it is dangerous and inaccessible for anyone with mobility difficulties.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mr B bought his property in 2016. It has an unadopted road access at the rear and an unadopted footpath running along the front of the row of properties. There is a grassed area between the front of the property and the road with no footpath.
- Mr B says when he bought the property, he did not know the rear road and footpath were unadopted. He says the front grassed area gets very water-logged and muddy and the rear access road floods. He says access to the property is very difficult particularly for elderly people or people with mobility difficulties.
- Mr B first contacted the Council in November 2017 to report that the front path was in a bad condition, and he had to walk on the grass to access his property. In January 2018 the Council said that the footpath was not adopted so it was not within the Council’s control. The responsibility for maintenance lay with the ‘Street Managers’ (those owning the land or property adjacent to the highway. In this case, owners of the row of properties).
- Mr B pursued the complaint asking for a solution as the owners of the other properties did not want to do anything to improve the footpath. The Council confirmed that the footpath was unadopted and the Council had no power to take any action to repair the footpath or compel the owners to do so. It was a private matter for Mr B to resolve.
- Mr B asked for some pre-application planning advice in 2019 for a driveway. He assumed the land was Council-owned. The Council responded to this request in January 2020. It noted there was a garage and a parking space at the rear. It noted the path at the front and assumed the grassed area was Council-owned. It also acknowledged that a driveway had already been constructed in the middle of the Council-owned land, serving two dwellings but without planning permission. It said it was unlikely that it would grant planning permission due to the visual harm and harm to highway safety.
- Mr B contacted the Council asking for who he could contact to improve the access to his property. The planning officer referred him to the highway and engineering team.
- In July 2020 Mr B contacted the Council again about the lack of access to his property. He said:
“I am wanting a footpath across the meadow in front of my house. Firstly, I want to know whether it would need planning permission as there is already a driveway further up with no signs of planning permission. Secondly, whether the council would fund or part fund this or if they have a duty to provide me and people with mobility problems access to my house.”
- In August 2020 Mr B submitted another pre-application advice request for the construction of a footpath at the front of the property. The Council responded in October 2020. It noted the large grass area at the front of the property, which it considered was owned by the Council. It said that planning permission would be required, and the Council would also need to give permission to use the land as footpath.
- The Council said it had concerns about the impact on the amenity of the area of an additional hard-surfaced footpath and that it may set an undesirable precedent with the potential for other properties to do a similar thing. It warned that Mr B should be mindful of additional expenses if land needed to be purchased or street furniture removed. It noted that issues relating to private roads were a civil matter and should be dealt with by owners of the road.
- Mr B contacted the Council in December 2020. He said he understood it was 50/50 whether the Council would grant planning permission for the footpath. He questioned whether the Council was responsible for providing an access to the highway and sent a video showing a delivery driver struggling to access the property.
- The Council responded saying if the land at the front of the dwellings was owned by the Council, then he would need to discuss matters of access with highways team. The highways and engineering team replied in January 2021 saying that the road was not adopted so maintenance responsibility rested with the street managers. Mr B then complained to us.
- In response to my enquiries, the Council has recently clarified that part of the grassed area to the front of the property is owned by a third party. It also says it does not consider Mr B has been clear about what he wants: whether he wants the footpath at the front or the road to the rear to be adopted or to pursue construction of a footpath directly from the main road to his property.
- When Mr B purchased his property in 2016 it was his responsibility to establish the access and ownership issues of the land around his property. The failure to do so has contributed to the current situation.
- It was also reasonable for the Council to say in 2018 the issue of the unadopted footpath and rear access road was a private matter for the owners to resolve.
- However, since late 2019/2020 Mr B has been clear that he wants to construct a path across the grassed area from the highway to his property. The Council provided two pre-application responses which indicate it is in the balance whether it would grant planning permission. The latter response in October 2020 considered the land concerned was Council-owned and extra costs may be involved in purchasing the land.
- In order to answer the question of whether the Council would allow him to build that footpath on Council-owned land, the planning team referred him to the highway and engineering team. Mr B did not contact the highway and engineering team until late December 2020. The highway and engineering team did not answer his query about providing an access from the road at the front but just referred to the previous response that the footpath and rear access road are unadopted and so the Council can do nothing about it. This was fault. But given that the Council does not have the power to alter the outcome, I do not think this caused Mr B an injustice which warrants a remedy.
- The Council has also provided new information in its recent response to me revealing that part of the land Mr B wishes to build on is owned by a third party which complicates the situation further. The Council has also clarified that the pre-application advice process is not expected to reveal issues over land-ownership, and it would not expect staff to check this point unless a planning application is made.
- As Mr B did not make a planning application or seek legal advice on the situation, I cannot criticise the Council for failing to discover the land-ownership issue at an earlier point.
- I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.
Investigator's decision on behalf of the Ombudsman