London Borough of Bromley (18 007 509)

Category : Transport and highways > Other

Decision : Not upheld

Decision date : 21 Dec 2018

The Ombudsman's final decision:

Summary: Miss B says the Council behaved unreasonably and treated her differently by refusing her application for a vehicle crossover when she has planning permission for vehicle hardstanding at her property. The Council’s decision to grant planning permission but refuse the application for a crossover was not affected by fault.

The complaint

  1. The complainant, whom I shall refer to as Miss B, complained the Council has behaved unreasonably and treated her differently in refusing her application for a vehicle crossover. That is because the Council granted planning permission for vehicular hardstanding and hardstanding outside her property.

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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. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  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. As part of the investigation, I have:
    • considered the complaint and Miss B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • gave the Council an opportunity to comment on my draft decision; and
    • considered Miss B’s comments on my draft decision.

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What I found

  1. The Ombudsman investigated a complaint about the Council’s decision to refuse permission for a vehicle crossover at Miss B’s property in 2013 and found no fault. Since then Miss B put in an application for planning permission for hardstanding and vehicle access. The Council granted permission for that application but continued to refuse permission for Miss B to have a vehicle crossover. The Council refused the vehicle crossover because the distance between the edge of Miss B’s property and the footpath is less than 4.5 metres, which is required by the Council’s policy. The Council also noted allowing a vehicle crossover would lead to the loss of a parking bay in a controlled parking zone, which is again against the Council’s policy. Miss B says it was unreasonable for the Council to refuse permission for the crossover when it had granted permission for laying of hardstanding and vehicle access.

The Council’s policy

  1. The Council’s policy and guidelines on provision of footway crossovers says:
  2. ‘these guidelines apply to the construction of new or extended crossovers which provide access to properties from the carriageway across footways and/or verges …. where the proposed crossover does not depend on the applicant requiring planning permission for an associated development.
  3. ‘Where planning permission is required, the need for a crossover and any detailed design considerations will be taken into account as part of the assessment of the planning application. However, many of the principles contained in these guidelines will be relevant when considering whether to grant planning permission for a crossover and to its subsequent construction.’
  4. ‘The authority reserves the right to take into account existing on street parking provision when considering whether to permit a crossover. Where the proposed crossover would result in the removal of a marked on street parking or loading bay…there will be a presumption to refuse an application.’
  5. ‘Parallel parking to the carriageway shall not be permitted. Permission for an application will therefore be refused if the part of the property nearest the road is less than 4.5 metres from the back edge of the public footpath…’

Analysis

  1. Miss B received planning permission in 2014 and I understand the Council told her in 2014 it would still not allow a vehicle crossover. That is more than 12 months before Miss B complained to the Ombudsman. I have exercised the Ombudsman’s discretion to investigate in this case because it is clear Miss B did not complete the hardstanding until 2016. It is also clear Miss B has been in regular contact with the Council since then.
  2. Miss B says the Council should not have refused her application for a vehicle crossover when it had granted planning permission for vehicle hardstanding and vehicular access. The Council says though to grant a vehicle crossover in Miss B’s case would mean it had to go against its policy. The Council says it has applied that policy consistently in other cases, including two applications on Miss B’s road. The Council says one consent does not guarantee another.
  3. The starting point here is the Council’s crossover policy, which I refer to in paragraphs 7-11. In this case Miss B needed planning permission as she proposed hardstanding not covered by permitted development rights. The Council’s policy says when planning permission is required the assessment of the planning application will include consideration of the need for a crossover and detailed design considerations. Having considered the report for the planning application I note it refers to highways objecting to a vehicle crossover. The report makes clear because the depth of the proposed driveway does not meet the requirements of the policy and would result in a loss of a parking bay the Council would likely refuse permission for a crossover as it had done in similar cases. I am therefore satisfied Members were aware, in granting permission, Miss B would likely not secure permission for a vehicle crossover.
  4. Whether Miss B needed a vehicle crossover to enable her to carry out the permission is a relevant consideration for the Planning Committee. However, I also consider there could be circumstances where it is suitable to grant planning permission even if it is unlikely the Council will allow a vehicle crossover. For instance, in this case although Miss B has not received permission for a vehicle crossover she is still able to access vehicle hardstanding in front of her property. That is because she uses the vehicle crossover outside her neighbour’s property. I consider it would have been helpful for Committee to have recorded its view on why it should grant planning permission when a vehicle crossover would likely not be granted permission. However, I do not consider that affected the decision in this case.
  5. That is because it was not for the Planning Committee to decide whether to grant a vehicle crossover. That is a separate process. The fact the Council would likely not have granted a vehicle crossover also does not bind the Planning Committee to refuse if it can explain its reasons. I can foresee a situation where granting planning permission when that permission could not be implemented without a vehicle crossover might result in a finding of perversity. However, I am satisfied that is not the case here since Miss B has been able to access her parking space without a vehicle crossover. So, granting planning permission and then refusing a vehicle crossover has not prevented Miss B carrying out the permission. I therefore do not intend to pursue the point further.
  6. Miss B says the Council has treated her differently to other people. However, the Council has provided details of several properties where it has refused permission for a vehicle crossover where the property does not meet the criteria. That includes two properties on Miss B’s road. I am therefore satisfied the Council has not treated Miss B differently. Most of those cases did not seek planning permission in the same way Miss B did. However, I have already made clear the grant of planning permission does not automatically mean the Council has to approve a vehicle crossover when to do so would be against its policy.
  7. I am not persuaded by Miss B’s argument the case of R v Warwickshire County Council ex parte PowerGen plc.8 is relevant to what has happened in her case. In the legal case Miss B refers to the Council refused to complete a section 278 agreement following the grant of planning permission by the Planning Inspectorate. In that case the Planning Inspectorate granted planning permission for a development which the Council did not consider suitable for highway safety. In effect, by refusing to complete a section 278 agreement the Council prevented implementation of the planning permission. I do not consider that case comparable to Miss B’s case. The planning application the Council considered did not involve any land outside Miss B’s curtilage. The grant of planning permission did not automatically mean the Council had to approve the vehicle crossover. As I said earlier, there will be circumstances where it is possible to carry out the planning permission without a vehicle crossover, as Miss B has been able to do.

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Final decision

  1. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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