Summary: We will not investigate Mr X’s complaint that the Council requires him to pay a fee for a dropped kerb application without any guarantee his application would be successful. This is because the complaint is late and it is unlikely we would find fault by the Council.

The complaint

1. The complainant, Mr X, complains the Council has acted unreasonably in advising him he must pay a non-refundable fee of more than £2,000 for his dropped kerb application with no guarantee it will grant him permission for the dropped kerb.

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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, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

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

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I reviewed Mr X’s complaint, the Council’s responses and the decision notice for Mr X’s planning application. I shared my draft decision with Mr X and invited his comments.

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What I found

5. The Council granted Mr X planning permission to extend a property he owns in 2014. In the plans Mr X set out an area of off-street parking and the conditions to the planning permission required the development to be carried out in accordance with these plans.
6. The planning officer’s report for the application included comments from the Council’s Highways department which explained Mr X would need to apply for a dropped kerb to access the parking area. This process includes a detailed survey and the applicant is responsible for the cost. The Highways response also confirmed that because the dropped kerb required the alteration of existing parking bays, it would be subject to consultation and success could not be guaranteed.
7. Mr X initially applied for a dropped kerb in July 2016 and the Council confirmed he would need to pay for consultation to alter the Traffic Management Order (TMO), which provides authority for the parking bays. It made clear the fee was non-refundable and that his application could be refused. Mr X decided not to proceed at the time as he was unhappy with the level of costs and the fact the fee was not refundable. He suggests that because the planning department approved his planning application he should not have to pay additional costs for the highways department to consider his application for a dropped kerb.
8. Mr X has now largely completed work on the development; he contacted the Council again in 2019 about the dropped kerb application process and the Council confirmed he must still pay the fee if he wants it to consider the application. The fee is currently £2,151.31 and this covers the drafting and advertising of the TMO in the local newspaper and Lonon Gazette, sending out letters to affected residents, placing street notices and undertaking statutory consultation with local residents over the proposed changes. It explained the outcome of the application depends largely on the results of the consultation so cannot be pre-judged. It also confirmed Mr X was under no obligation to proceed with his application, although Mr X says it is a requirement of the planning permission. He believes it is unfair the Council can charge him for considering his application.
9. Mr X was aware in 2014 that he would have to apply for separate permission for the dropped kerb and he was aware of the amounts and process involved in 2016. His complaint about these issues is therefore late.
10. The planning application process looks at the principle of development and decides whether a proposal is acceptable in planning terms. The planning officer’s report makes clear there is a separate process for applying for a dropped kerb and the highways department’s comments explained this would involve statutory consultation to alter the TMO, for which Mr X would have to pay. It would not be fair to other council taxpayers to expect the Council to spend public funds to determine Mr X’s dropped kerb application and it is not fault for the Council to pass the cost on to Mr X.
11. It was Mr X’s choice to proceed with the development in the knowledge he would have to separately apply for a dropped kerb and it remains his choice whether to continue with the application process now. If he considers the cost too high he may decide not to pay the fee required. It would then be for the Council’s planning department to consider the matter as a breach of planning control and decide whether to take formal enforcement action; in the event it issues an Enforcement Notice, Mr X would have a right of appeal to the Planning Inspectorate against the Notice.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because the complaint is late and it is unlikely we would find fault by the Council.

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Investigator's decision on behalf of the Ombudsman