The Ombudsman's final decision:
Summary: Mrs D complains about the way the Council dealt with construction of a pavement outside her home. There was no fault.
- Mrs D complains the Council:
- Delayed granting technical approval to a developer to build a pavement outside her home
- Failed to install a temporary solution to ensure residents safety on the public highway
- Failed to properly consider whether to call in the developer's bond to construct the pavement
- Failed to respond to her and did not deal with her complaint properly
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)
- 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)
- 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 considered the information Mrs D sent, including photographs of the site and the Council’s response to my enquiries. The length of our investigation was affected by the coronavirus pandemic.
- Mrs D 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
- Most development needs planning permission from the local planning authority. Local highway authorities may ask the planning authority to use planning conditions to control development. In this case Somerset County Council (the Council) is the highways authority, South Somerset District Council is the local planning authority.
- The Council can ask that a condition is attached to the planning permission that requires the applicant to enter into a legal agreement with the highway authority before it carries out works on the highway. This is done under section 278 of the Highways Act 1980. This section 278 agreement is drafted by legal representatives for the Council and the applicant. It will, amongst other things, include a bond for the works and clauses relating to when the works can commence on site.
- Once the agreement is signed the applicant is required to obtain technical approval for the works from the Council prior to them commencing. The Council says this approval process is iterative. The applicant submits technical drawings for safety and technical auditing, the Council returns the report with any points that need to be addressed. The process is completed once the Council is satisfied that all the outstanding points have been addressed. Once that has occurred technical approval can be granted. The Council aims to turn around these audits within 15 working days but its maximum deadline is 40 working days.
- Mrs D has physical disabilities. She lives in a flat in a development that had been granted planning permission by the district council.
- The original scheme had included proposals for a new pavement outside the entrance, but permission for the pavement was refused. In 2016 the developer applied to the district council to vary a condition in relation to conversion of some new units. It then became clear that the residents who lived in the earlier converted parts, including Mrs D, were expecting a pavement to be constructed to provide a safe means of access. The district council therefore asked the developer to provide the pavement and consent was granted. The district council set a condition that the new pavement should be fully constructed within one year, i.e. by 23 September 2017, or before the first occupation of the new units, whichever was the sooner.
- In November 2017, the Council told the developer the section 278 agreement could not be signed as the condition to build the pavement would be immediately breached. I have seen no evidence the developer had contacted the Council about the section 278 agreement prior to November 2017.
- The developer applied to the district council to vary the condition to extend the deadline for building the pavement to 30 April 2018. The district council approved this application in February 2018. The condition says a section 278 agreement and technical approval were required before construction could start on the public highway. I have seen no evidence the developer then contacted the Council about the section 278 agreement. Mrs D says the new units were first occupied in February 2018.
- A further application to vary the condition was submitted in May 2018. This was granted in September 2018 and gave consent to an extension until the end of November 2018. The section 278 agreement was signed on 30 November 2018.
- The developer submitted drawings for technical approval from the Council in January 2019. Between January 2019 and September 2019, the developer submitted drawings four times. The first three times, the Council responded with its comments within 40 working days.
- Mrs D complained to the Council and to the district council about the delays in constructing the pavement in July 2019. The Council replied on 21 August 2019 that it was close to issuing highway approval for the works.
- In response to my enquiries the Council said it could have issued technical approval in September 2019, but it first needed to be satisfied that the proposed works would not have an adverse impact on a gas main. It therefore told the developer in September 2019 that they needed to “arrange for pre-commencement investigation work on site … to confirm that the proposed … construction of the footpath [was] achievable without clashing with other existing utilities. A section 171 licence will be required”. I have seen no evidence the developer contacted the Council about the section 171 licence until April 2020.
- Mrs D asked for her complaint to be escalated in October 2019. The Council’s final complaint response said it was the developer’s responsibility to build the pavement and the Council could not control their timescales.
- Mrs D complained to the Ombudsman. She said that since early 2018 she had had to rely on her husband to lift her mobility scooter in and out of the building, which was unsafe, demeaning and degrading. She had therefore been unable to leave her home. We decided to wait until the works had been completed before investigating.
- In February 2020, the developer told the district council “a secondary survey has now been completed which has identified a gas main that is too shallow and which will require diverting.”
- The developer approached the Council for a section 171 licence in April 2020. The Council told the developer the gas main needed to be found prior to any licence being issued to carry out work on the pavement. In response to my enquiries it said the intention was to issue a section 171 licence to find the gas main. On confirmation that the gas main did not affect the work another licence would be issued and the pavement works supervised by the Council. However, the pavement works went ahead illegally in April 2020 without these licences. The pavement was completed on 8 May 2020. The Council told the Ombudsman technical approval had been given after confirmation from the developer that the gas main was not affected. The Council visited the site in October 2020 but found the finished construction did not meet all necessary standards.
- The developer could not start work on the pavement until it had signed a section 278 agreement with the Council. I have seen no evidence it sought to do this until November 2017. I therefore cannot say the Council caused any delay in construction of the pavement prior to November 2017.
- During 2018 the developer sought extensions to the deadline to complete the pavement. The section 278 agreement was eventually signed in November 2018 but I have seen no evidence of fault by the Council in how long this took.
- The developer first submitted drawings for approval in January 2019. I have considered the time taken to issue to the technical approval. The Council had to use its professional judgement to decide when the submitted plans were acceptable. It was not satisfied with the plans and three times required changes to be made. It was entitled to do this and it inevitably took time. Each time the Council responded to the developer within its 40 working day deadline. I therefore have seen no evidence of avoidable drift or delay by the Council and do not find fault.
- Mrs D says the Council should have installed a temporary pavement or ramp in the meantime. In response to my enquiries the Council said it had no statutory duty to do this. It considered that as the developer was in breach of the planning controls it was for the developer to find a solution.
- I agree with the Council that it had no duty to install a pavement as this was the developer’s responsibility. This applies even though the highway authority has a duty to repair potholes on the public highway. In any event, a temporary ramp would also have required planning permission and technical approval, so it is unlikely to have been quicker. I find there was no fault in not installing a temporary solution.
- The Council says it considered calling in the developer’s bond but decided not to as it was in dialogue with the developer for them to complete the works. It said the process would have meant legal proceedings and the scheme having to start again, causing further delay. This is a decision the Council was entitled to make and I have seen no evidence of fault in the way it decided this.
- Whilst I understand Mrs D’s frustration and the significant problems she was caused by the length of time it took for the pavement to be built, I do not find these were caused by fault by the Council.
- Mrs D complains about the way the Council dealt with her complaint and felt her questions had not been answered. The Council’s complaint procedure at the time aimed to provide a first stage response within 10 working days and the second stage within 20 working days. The second response was on time, but the first response was two weeks late and did not properly explain the complaint process, causing confusion which the Council later apologised for. However, I do not consider that caused significant injustice. I realise Mrs D was unhappy with the Council’s responses but that is not evidence of fault in complaint handling.
- There was no fault by the Council. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman