Summary: Mr X complains about the Council’s decision not to take enforcement action in relation to an unlawful crossing constructed by his neighbour. The Council is not at fault.

The complaint

1. Mr X says his neighbour, Mrs N, constructed an illegal crossing about five years ago to enable her to drive from the highway onto her driveway. The Council refused to take enforcement action requiring her to construct a proper dropped kerb.

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The Ombudsman’s role and powers

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

4. I spoke to Mr X and considered the information he provided.
5. I considered the Council’s replies to my enquiries.
6. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

7. Planning enforcement is discretionary. Where a council finds a breach of planning control, it may decide whether or not the breach causes harm to the public. Government guidance says enforcement action should only be taken if it would be proportionate to the breach.

What happened

8. Mr X says about five years ago Mrs N constructed an illegal crossing comprising a tarmac ramp from the road to the footpath to enable her to access her driveway with a vehicle. He says he reported this to the Council at the time but it took no action.
9. In January 2019 he had an accident when his mobility scooter bumped into the tarmac crossing, which he did not see in the dark. He says he suffered a head injury and his glasses were broken. He reported this to the Council.
10. The Council carried out a site visit. It wrote to Mrs N in March 2019 to say it could force her to install a “dropped crossing” to “Council specifications”. Mrs N indicated she would not install a crossing because of the cost involved.
11. Officers from the highways and enforcement teams considered whether enforcement action was appropriate. The officers noted there were a number of these illegal crossings in this area, some of which had been there for many years. The officers considered they did not pose “an immediate danger”. The Council decided not to take enforcement action.
12. An officer from the Council’s complaints team explained the Council’s position to Mr X. I understand the Council also sent a complaint response under stage 2 of its complaints process but I have not seen this.
13. In August 2019, Mr X moved to another area.
14. In September 2019, following the complaint to us, the Council carried out a further site visit and re-considered its decision. It noted there was no damage to the footpath and concluded there was no risk to pedestrians or wheelchair users on the footpath.

My findings

15. In this case, I have seen evidence to show the Council carried out a site visit and considered the risks to the public in 2018 and again in 2019. On both occasions, it decided there was no risk to the public that justified it taking enforcement action. There is no evidence of fault in the way the Council considered this.
16. The Ombudsman would not question the merits of a decision not to pursue formal enforcement action provided that decision was made without procedural fault. This is because the question of expediency is a professional judgement for councils to make.

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Final decision

17. I have completed my investigation. I have not found fault.

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Investigator's decision on behalf of the Ombudsman