Summary: The Council was not at fault for its refusal of Mr B’s application for a dropped kerb. It assessed the space needed for the roots of a tree in front of Mr B’s property, and decided there would not be enough space available for the flat area of the kerb. This decision was in line with its policy.

The complaint

1. The complainant, whom I refer to as Mr B, complains about the Council’s refusal to allow him a dropped kerb outside his property. He says he needs the kerb because of his age and medical issues.
2. Mr B says the Council has measured the available space for the dropped kerb incorrectly. He says that – even though there is a tree in front of his property – there is still at least 2.4 metres for the kerb.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered information from Mr B and the Council. I wrote to Mr B and the Council with my draft decision and considered their comments.

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What I found

The Council’s car crossing procedure

6. The Council’s procedure says it will not approve the removal of a tree to facilitate a dropped kerb unless the tree is unhealthy or is less than three years old. It will not approve the removal of a tree at all the facilitate the extension of an existing dropped kerb.
7. The exception to this is when an applicant is disabled. The applicant must have a disabled parking badge for the Council to consider the removal of a tree.
8. The minimum length of the flat area of a dropped kerb is 2.4 metres, and the maximum is 5.5 metres. For a joint crossing serving two properties, the flat area should not exceed 11 metres.
9. The Council says the size of the area which cannot have a dropped kerb because of tree roots depends on the species and size of the tree. It says a tree officer will decide how much space the tree needs for its roots on a case-by-case basis.

What happened

10. Mr B first applied for a dropped kerb in 2017. The Council’s tree officer visited the site twice (in June, following Mr B’s first enquiry, and in December, following a further enquiry). He decided that, as the tree was over three years old and healthy, it would not be removed.
11. The Council measured 3.2 metres between the base of the tree and the boundary of Mr B’s property (which is the same measurement as Mr B himself took).
12. The Council’s Tree and Nature Conservation Manager says the tree is young and likely to grow significantly, so sufficient space for the tree’s root growth is required to limit the risk of the roots damaging a dropped kerb the future. Because of this, the Council decided a minimum distance of 1.5 metres was needed between the tree and any new dropped kerb.
13. With 1.5 metres needed from the tree, and 0.6 metres needed for the ‘transition’ kerb (between the raised and dropped kerbs), the Council decided that only 1.1 metres would be available for the flat area of a dropped kerb. It refused Mr B’s application, saying there is not enough room in front of the property.
14. In January 2018 Mr B made a further enquiry, and asked if the Council would extend his next-door neighbour’s dropped kerb. The Council refused, saying there would still not be enough room for a flat area which reached the minimum distance requirement.

Analysis

15. The Council will only approve the removal of a tree to facilitate a dropped kerb if the tree is less than three years old or if its health will significantly decline within three years. The Council’s tree officer confirmed, in 2017, that the tree in front of Mr B’s property is over three years old and healthy, so would not be considered for removal.
16. The Council will consider removing a tree if an applicant is disabled, and has a disabled parking badge. However, Mr B does not have a badge.
17. This means the Council was not at fault for deciding not to remove the tree.
18. The Council’s policy says the minimum length of the flat area of a dropped kerb is 2.4 metres. The distance the kerb needs to be from a tree depends on the size and species of the tree. The Council’s tree officer decides this and looks at each case individually.
19. The Council’s tree officer decided, having visited the site, that any dropped kerb installation needed to be 1.5 metres from the tree so its roots would not damage a dropped kerb in future.
20. This was for the Council to decide. It properly considered the matter and explained its decision, so I cannot question the decision itself.
21. With this in mind (and considering the 0.6 metres needed for a transition kerb), there is no fault in the Council’s calculation that there would only be 1.1 metres available in front of Mr B’s property for the flat area of a dropped kerb.
22. The Council’s policy is that a minimum of 2.4 metres of flat area is needed, so it acted in line with its policy by refusing Mr B’s application.
23. As a result, I have not found fault with the Council.

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Final decision

24. The Council was not at fault for its refusal of Mr B’s application for a dropped kerb. It assessed the space needed for the roots of a tree in front of Mr B’s property, and decided there would not be enough space available for the flat area of the kerb. This decision was in line with its policy.

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Investigator's decision on behalf of the Ombudsman