Summary: Mr X complains about the Council’s decision to decline his dropped kerb application. The Council declined the application as the proposed dropped kerb was within 10 metres of an existing junction and considered unsafe. Mr X says the Council did not have any policy which stated this. The Ombudsman does not find fault with the Council’s decision.

The complaint

1. Mr X complains about the Council’s decision to decline his dropped kerb application. The Council said Mr X’s proposed dropped kerb is within 10 metres of an existing junction and that it considers this unsafe. Mr X says the Council did not have any policy which stated this and so could not use it as a reason to refuse his application.

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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’. 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)
3. 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 spoke with Mr X and considered the information he provided.
6. I considered the information provided by the Council.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Manual for Streets guidance

8. This is non-statutory government guidance which provides advice for the design of residential streets. It notes the guidance is expected to be used predominantly for the design, construction, adoption and maintenance of new residential streets, but it is also applicable to existing residential streets subject to re-design.
9. This guidance does not have any requirements for minimum distances between dropped kerbs and junctions.

Council’s policy

10. The Council’s policy applies to all applications for a dropped kerb. The policy notes the position of the proposed dropped kerb must be at least ten metres away from the nearest kerb line of any road junction. It notes the assessing office may reduce this to five meters in a cul-de-sac or minor estate road or increase this requirement as necessary to ensure the safety of road users.
11. The policy also says if there any exceptional circumstances the applicants wants the Council to consider, they should detail them in the application. Where it is safe to do so, the Council may be able to exercise discretion to consider the exceptional circumstances to meet its public sector equality duty.
12. The above policy was brought in after Mr X first applied for his dropped kerb.

What happened

13. Mr X applied for a drop kerb outside his property within a cul-de-sac. The Council refused his application in October 2019 as the proposed dropped kerb was within ten metres of a junction.
14. The Council said it would not approve applications for dropped kerbs in locations where it consider this could cause or add to existing traffic management, parking or road safety problems on street, regardless of road classification and levels of use. The Council said it would refuse all applications it considered unsafe. The Council said it considered dropped kerbs within ten metres of a junction unsafe.
15. Mr X said the Council had not made this requirement clear on its website or within its dropped kerb application pack. Mr X the Council could not apply a policy which it did not have.
16. Mr X also said his proposed dropped kerb would be 14.08 metres, measured from the junction’s centre line. The Council said it measured the distance from the nearest kerb line of the junction, not the centre line. The Council explained this was because conflicts could occur in the areas either side of the centre line.
17. In August 2020, Mr X told the Ombudsman the Council had reconsidered his application in line with its new policy. Mr X said the Council had approved his application.

Analysis

18. The evidence suggests the Council did not have a policy around minimum distances prior to Mr X’s application. However, for the reasons set out below, I do not find fault with the Council’s decision to decline Mr X’s application.
19. The Manual for Streets guidance is only advisory. This means Councils can choose to adopt their own minimum requirements on safety grounds. While I appreciate Mr X’s view that the Manual for Streets does not contain any minimum distance for dropped kerbs to a junction, this does not mean the Council is at fault for implementing one.
20. The Council has outlined its reasons for having a minimum distance. The Council said it considered dropped kerbs within ten metres of a junction unsafe. The Council was entitled to make this decision and the Ombudsman cannot question whether the distance the Council chose was too far or too close.
21. The Ombudsman cannot criticise the Council’s decision if the decision has been made properly. The evidence shows the Council considered the evidence submitted by Mr X before it made its decision on his application. The Council explained it refused the application based on safety concerns. As set out above, the Council was entitled to decide what its criteria was for road safety.
22. As the Council made its decision after considering all relevant evidence, I cannot find fault with the decision itself.
23. Since declining Mr X’s application, the Council brought in a policy which set out that any proposed dropped kerbs must be at least ten metres away from the nearest kerb line of any road junction. The policy also highlighted that an officer may reduce this to five meters in a cul-de-sac or minor estate road.
24. It was appropriate for the Council to reconsider Mr X’s application as the Council had now implemented a policy around dropped kerbs. The Council’s decision to now approve Mr X’s application is in line with its policy as the Council has discretion to lower the minimum distances in a cul-de-sac.

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Final decision

25. I find no fault with the Council’s decision to decline Mr X’s dropped kerb application in October 2019. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman