Summary: Mr X complains about the Council’s involvement as highways consultee and its assessment of the as-built scheme. Mr X says the works have caused serious highway safety issues. The County Council provided its professional judgement on the as-built scheme to the Borough Council. There is no evidence of fault.

The complaint

1. Mr X complains about the Council’s involvement as highways consultee and its assessment of the as-built scheme.
2. He says the works have in effect created a lay-by causing road safety issues when entering and leaving his property.

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What I have investigated

3. This investigation is considering only the County Council’s actions in respect of its involvement in the enforcement process and the assessment of the as-built scheme. I explain at paragraph 26 below the reasons for not considering the other part of Mr X’s complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant and his representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

7. Mr X’s property is set back from the road and served by a private access road. For many years he shared this access road with a neighbour. The neighbour applied for planning permission to enable him to construct a separate access road for his property which would run parallel to the existing, shared access road.
8. The Borough Council refused a planning application in 2016. It then considered another application in 2017 and granted permission.
9. Mr X’s neighbour constructed the access road. Mr X complained to the Borough Council that the road was not built in accordance with the planning permission. The Borough Council instigated an enforcement investigation.
10. The construction of the access road by Mr X’s neighbour required him to create a crossover from his private land to the existing highway. To do this he required permission and so applied for a vehicle crossing licence and a section 184 (Highways Act 1980) permit in May 2018.
11. The Council says it checked the application against the planning permission. Checked the construction details to ensure the appropriate materials and methods would be used. It determined the proposal met its standards and so granted the licence and permit. The Council visited the site when construction was taking place to ensure it was being carried out in accordance with the licence.
12. In September 2019, the Borough Council, after receiving a complaint from Mr X, contacted the County Council. The Borough Council explained it was investigating a breach of planning permission and asked the Council for its view on whether the works are in accordance with what was approved and if there are any highway safety concerns. The Borough Council said that any enforcement action taken would be based on highway safety concerns.
13. The County Council responded saying that from a highways point of view it was satisfied the access had been built in accordance with the design and specification. The Borough Council asked the County Council if it could carry out a further site visit. It explained it had now identified a breach of the approved plans and it wanted Highways to confirm if the works undertaken are acceptable from a highways perspective.
14. The County Council explained that it was only concerned with the works carried out on the highway as part of the section 184 agreement. It said anything carried out on the other side of the highway boundary are out of the scope of the agreement and so have not been inspected.
15. The Borough Council contacted the County Council again asking if it would carry out a site visit to take a view on whether all the works undertaken on site are acceptable from a highways safety perspective. It said any enforcement action taken would be based on formal objections to the development in terms of highway safety.
16. After visiting the site on 9 October the County Council contacted the Borough Council saying the work in the highway as part of the section 184 agreement is acceptable. It said officers had measured the width of the access road where it connects to the highway and it appeared to be in excess of the 4.25 metres on an approved drawing. It noted the officer was unable to enter the site but that it appeared the width of the access road continued for a sufficient distance from the highway boundary. It said drainage had been provided to prevent water from flowing onto the highway. It said the Highways Authority considered there were no highway safety grounds to resist the access in its current form.
17. In November, the Borough Council contacted the County Council again. It again asked the County Council to confirm its previous view that there were no highway safety issues. A manager responded saying she was happy to look into this and would carry out a site visit. She also asked if an as built survey to overlay against the approved planning drawing had been carried out and said the County Council was able to do this.
18. On 20 November the County Council sent the Borough Council a copy of the survey it had carried out on site. It explained this could be overlaid with the approved drawing of the same scale. The County Council said the access appeared to have been build within the red line/existing highway. The Borough Council responded saying it appeared there had been some confusion about what clarification it was seeking. It said it needed to know if the as built scheme is acceptable in highway safety terms. It said Mr X’s solicitor was looking to pursue a judicial review of the decision not to take enforcement action and it was seeking further clarification that the Highways Authority is satisfied the as built scheme is acceptable in highway safety terms.
19. The County Council confirmed it had no concerns about highway safety.

Analysis

20. Mr X complains about the County Council’s involvement as highways consultee and its assessment of the as-built entrance. I explain at paragraph 26 below that the Ombudsman has already considered a complaint about the County Council’s actions as consultee in respect of the planning application and that there is no basis to reconsider that decision.
21. Mr X believes the as built scheme poses a real threat to highway safety. He believes the County and Borough Councils have worked in concert regarding this matter. He says the County Council has not given proper consideration to the as-built scheme.
22. The information provided shows the Borough Council contacted the County Council for its views on the as built scheme. I would not criticise this action as the County Council is the Highway Authority and so the specialist in terms of highway safety issues. The Borough Council sought the opinion of the County Council prior to it taking a view on enforcement action. The Borough Council confirmed there was a breach of planning control and was looking at whether to take enforcement action. It felt the only reason to take formal enforcement action would be if the as built scheme caused highway safety issues.
23. The County Council concluded there are no highway safety grounds to resist the access in its current form. It has taken this view after visiting the site twice, once during construction and once after completion, and considering the Leicestershire Highway Design Guide. It has taken measurements and carried out an as-built survey. It has considered the highway consultation response provided as part of the planning process and looked at the technical information provided as part of the section 184 process. It took all this information into account and using its professional judgement decided the as built scheme did not cause any highway safety issues.
24. I appreciate Mr X does not agree with this assessment. However, a difference of opinion is not evidence of fault. The Ombudsman is concerned with administrative process and not the merits of decisions properly taken. There is no evidence of collusion between the Borough and County Councils. One Council asked the other for its professional opinion of the as built scheme in respect of highway safety. In seeking the views of the County Council, the Borough Council explained why it was seeking this information and how it would be used. I do not consider this was fault. I have not seen any evidence which suggests any fault in how the County Council formed its view.

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Final decision

25. I will now complete my investigation as there is no evidence of fault causing a significant injustice.

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Parts of the complaint that I did not investigate

26. I am not investigating the part of Mr X’s complaint about the County Council’s actions as highway consultee as part of the planning process. Mr X previously complained to the Ombudsman about the County Council’s involvement in the planning process as highways consultee. We made a decision to discontinue our investigation in June 2019 as there was no evidence of a significant personal injustice to Mr X. We have investigated and made a decision on a complaint about the County Council’s involvement in the planning decision process and there is no basis for me to reconsider that decision.

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Investigator's decision on behalf of the Ombudsman