Summary: Mr X complains about the Council’s decision to make him remove a dropped kerb he installed in front of his home. The Ombudsman will not investigate the complaint because we have not seen any evidence of fault by the Council which has caused Mr X injustice. And further investigation is unlikely to lead to a different outcome.

The complaint

1. Mr X complains the Council is forcing him to reinstate his dropped kerb which he installed in front of his home in 2015. He wants the Ombudsman to allow him to keep his off-road parking space.

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The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault
• the fault has not caused injustice to the person who complained
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

3. I considered information provided by Mr X and the Council. Mr X commented on the draft version of this decision.

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What I found

4. In 2014 Mr X decided to apply for a vehicle crossover, or dropped kerb, outside his home to allow him to park his car off the road.
5. The Council’s policy requires a person to get planning permission from the local planning authority (LPA), or a letter confirming planning permission is not required for the dropped kerb. In this case the LPA is not the County Council (the Council).
6. Mr X got a certificate of lawful proposed use of development (the certificate) from the LPA. He completed an application form for a dropped kerb and sent it to the Council with a copy of the certificate in 2015.
7. The Council’s policy and guidance on dropped kerbs in 2014 required a minimum space of 4.8 metres deep and 3.5 metres wide.
8. In the application form the Council asked the applicant to confirm if they have read the guidance on the approval process for dropped kerbs. Mr X answered ‘yes’ to this question.
9. The Council refused Mr X’ application because the space outside his home is too small, measuring 3.5 metres deep instead of 4.8 metres.
10. Mr X appealed against the decision, but this was also refused. Mr X ignored the Council’s refusal and built the dropped kerb anyway.
11. The Council started enforcement action to force Mr X to remove the dropped kerb. He asked his ward councillor for help. The councillor asked the Council to stop the enforcement action while it reviewed its guidance on the applying for a dropped kerb. The councillor did not tell the Council to permanently stop enforcement action. I have not seen evidence to show he has the authority to do so.
12. The Council put the enforcement action on hold and reviewed the guidance. It decided to include a fairness discretionary criterion.
13. The new criteria say officers have discretion to permit a dropped kerb if:

“a) there is a substantial majority of other properties in the road with identical dimensions which have a dropped kerb

b) if these dropped kerbs have not resulted in any reported safety concern

c) where there is no recorded evidence of any accidents or operational highway problems resulting from the use of these other dropped kerbs

d) any existing footway, verges and carriageway can be used safely by all highway users and

e) all other requirements of the guidance can be met.”

14. After the guidance review was completed the Council in June 2018 the Council sent a letter to Mr X explaining his dropped kerb was not permitted and it must be removed.
15. Mr X did not respond to this letter. In April 2019 Council officers attended Mr X’s home with a contractor to reinstate the kerb and recover the cost from Mr X. Following advice from its legal team the Council stopped this action.
16. In June 2019 the Council reassessed Mr X’s dropped kerb under the new guidance. It says Mr X’s dropped kerb still does not meet the minimum space criteria and there are not enough similar dropped kerbs in his road for his meet the new discretionary fairness criteria. In September 2019 the Council told Mr X he must reinstate the kerb.
17. Mr X complained to the Council, saying he had a certificate of lawful use or development, plus permission from the Councillor in 2015. The Council apologised to Mr X for not asking him to reapply for his dropped kerb once the new guidance came into effect. But it did not uphold his complaint.

Assessment

18. The Council’s guidance says that planning permission from the LPA does not grant permission for a dropped kerb. Mr X confirmed that he had read the guidance when he applied in 2014.
19. The Council refused his application and appeal. Mr X chose to ignore these refusals and install a dropped kerb. He did not use a Council approved contractor to do the work.
20. Following intervention by a councillor, enforcement action against his was stopped while officers reviewed the guidance.
21. After the guidance review, the Council restarted enforcement action against Mr X. It accepts this may have been a shock to Mr X as he may have though the matter was concluded in 2015. It has apologised for the delay. However, I do not consider the delay caused any injustice to Mr X, as he benefitted from the use of an unauthorised dropped kerb for 4 years.
22. Mr X does not have the County Council’s permission for his dropped kerb – this was expressly refused twice in 2015. The Council has reassessed the site and confirmed it does not meet the current criteria. It has decided to restart enforcement action. This is a decision it is entitled to make.
23. I understand Mr X feels the Council is ignoring the councillor’s decision to approve the dropped kerb. And it is discriminating against him and putting his family at risk because it has not considered other properties in his road with smaller spaces.
24. However, the Council confirms it has reassessed his application and while there may be other houses with similar spaces, they do not meet the fairness criteria detailed in paragraphs13 an 16 above.
25. Also, I have read the email from the councillor to Mr X. This states that he has asked for the enforcement action to stop and warns there may be a financial cost involved. It does not state that Mr X has been granted permission for the dropped kerb. I have not seen any evidence to show the Council has the authority to override the Council’s adopted policy on dropped kerbs.
26. It is unfortunate there has been a delay of 4 years between the Council’s refusal of Mr X’s application and the enforcement action. However, I consider that Mr X has benefited from using an unauthorised access during that period.

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Final decision

27. Subject to any comments Mr X might make, my view is the Ombudsman should not investigate this complaint. This is because:

• it is unlikely we would find fault
• the fault has not caused injustice to the person who complained
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman