Birmingham City Council (20 002 033)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 08 Jan 2021

The Ombudsman's final decision:

Summary: Mr F complains the Council has not dealt with his application for a dropped kerb fairly. The Council delayed responding to Mr F’s application, but this did not cause him a significant injustice as his application could not have been approved. The Council has already apologised for the delay. That is a suitable remedy.

The complaint

  1. Mr F complains the Council has not dealt with his application for a dropped kerb fairly. He says the Council put the application on hold for a year and then refused it without properly considering the significant parking and traffic problems on his road. He also says the Council granted his neighbour’s application although their frontages are the same.
  2. Mr F says the refusal causes him parking problems for his disabled son in a road that suffers significant parking and traffic problems.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries. The length of our investigation was affected by the coronavirus pandemic.
  2. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s dropped kerb policy

  1. An owner of a property has no automatic right to have a vehicular crossing (dropped kerb) installed to a premise. A crossing may be provided at the discretion of the Highway Authority acting under the statutory powers contained in s.184 Highways Act 1980. When a resident wants a dropped kerb installed outside their home they have to apply to the Council and pay an application fee.
  2. The Council’s current dropped kerb policy was agreed in 2006. It says officers will use their professional judgment to determine if a dropped kerb may be installed. Where planning permission is not required this decision will be based on visibility, safety and dimensions. For parking at right angles to the property, dropped kerbs might be installed if the depth of the parking space is not less than 4.75 metres.
  3. The policy says installation of dropped kerbs to enable parking parallel to the road would not be permitted unless there is parking space within curtilage and access is available by crossing the footway directly outside the property. In these circumstances, the minimum depth of the space would be 2.5 metres. The report recommending the implementation of this policy explains that it would only be possible to comply with the requirements for parallel parking if the width of the frontage was greater than 12 metres.
  4. The Council had carried out trials to allow parallel parking where the frontage was less than 4.75 metres deep and the width was less than 12 metres. In response to my enquiries, the Council said it had no records of the details of these trials or a definitive list of roads where these applications were allowed.
  5. Following a large number of complaints and press articles regarding parallel parked vehicles blocking the footway and obstructing pedestrians, in October 2018 officers put a report to the Cabinet Member for Transport and Roads seeking support to revise the dropped kerb policy. The proposal was to no longer allow dropped kerbs to be installed where the frontage was less than 4.75m deep.
  6. The Council acknowledged there were locations where an adequate depth of frontage did not exist but where crossings had previously been installed, but it considered these should not be deemed to form a precedent in the exercise of statutory powers when determining future applications. It said neither traffic nor parking considerations should overrule safety issues.
  7. The Cabinet Member consulted all ward councillors and local members of parliament about the proposed new policy on 26 January 2019. Consultees had until 28 February 2019 to comment. All applications where the frontage was less 4.75m were put on hold from November 2018.
  8. The Council says that as no objections to the proposal were received, no further footway crossings have been installed where the frontage is less than 4.75m. A draft revised policy is awaiting formal approval.

What happened

  1. In January 2019, Mr F applied to the Council for a dropped kerb so that he could park his car on his property, on the area between his house and the footpath. The area is not large enough to park at a right angle to the road without obstructing the footpath. The frontage depth is 3.7 metres, the width is less than 12 metres.
  2. The Council’s records show an email was sent to Mr F on 15 January 2019 to say that the Council was in the process of consulting on a revised dropped kerb policy and it would not be progressing any applications for properties with a frontage depth of less than 4.75 metres. There is no evidence of any further action being taken with Mr F’s application.
  3. In early December 2019 Mr F contacted the Council as his son now had a Blue Badge and he wondered if this would affect his application. The Council replied it would not. It said following a review of applications which had taken several months, it had been decided the Council would no longer offer dropped kerb quotes to residents where the frontage was less than 4.75m deep. The Council returned his application fee.
  4. Mr F was dissatisfied, he said one side of his road was commercial causing pressure on parking spaces and significant congestion. He also noted a neighbour with the same frontage had had a dropped kerb installed and asked what other applications had been made and granted in his road. Mr F made a formal complaint in January 2020. He said his application for a dropped kerb was kept for a year and when he queried what was happening the application was denied, with no chance to appeal, while others had been granted.
  5. The Council apologised for the delay in dealing with Mr F’s application. It said this was due to waiting for the outcome of the consultation on the proposed new policy. The Council could not approve Mr F’s application as the frontage depth was less than 4.75 metres. The Council said there had been two successful applications in Mr F’s road, in 2017.
  6. Mr F asked for his complaint to be escalated to the next stage of the Council’s complaint process. The Council’s final response was sent on 30 April 2020. It said it had carried out trials in some roads to allow dropped kerbs at properties with similar size frontages, but this had been suspended following a large number of complaints.
  7. Mr F complained to the Ombudsman. He said the Council should have considered the whole parking and traffic situation of his road when determining whether to approve his dropped kerb. He noted it was dangerous as cars had to drive on the pavement and there were nearby schools. The congestion meant his car was at risk of damage when parked in the street. Mr F said residents had asked for residents only parking. The Council’s proposal to make half the road one-way was insufficient.

My findings

  1. The Council was consulting on and preparing a revised dropped kerb policy when Mr F applied in January 2019, it therefore put his application on hold. The officer’s report explains the Council’s reasons for wanting to change the policy and end the trial. I have found no evidence of fault in the way the Council decided to put Mr F’s application on hold.
  2. In response to my enquiries the Council said following the consultation it had decided to not approve any further applications where the frontage was less than 4.75 metres as it had received no objections to the proposals. The Council has not provided evidence of a formal decision so I cannot say when this decision was made, but the consultation period had ended by March 2019. I therefore find there was a delay in not dealing with Mr F’s application until December 2019. This was fault. I note the Council has already apologised for the delay.
  3. The Council’s 2006 policy was still in force when Mr F made his application. That policy says dropped kerbs may be allowed for parallel parking, but only when the width of the person’s property was 12 metres, which Mrs F’s is not. This means that even if Mr F’s application had been promptly considered under the existing policy it would not have been allowed. I therefore do not consider the delay caused Mr F a significant injustice and I consider the Council’s apology to be a suitable and appropriate remedy.
  4. Mr F considers the Council’s decision to not grant permission for his application is unfair because it had previously granted permission to the owners of other properties in his road which have the same frontages. The Council has sent evidence that two other applications were approved in 2017. While I understand why Mr F feels this is unfair, he has been treated in the same way as everyone who has applied for a dropped kerb since November 2018 when the Council started to amend its policy.
  5. Mr F has highlighted the parking and traffic problems on his road and complains these were not taken in to account when his application was rejected. However, neither the Council’s existing or proposed new policy require it to consider traffic or wider parking issues if the dimensions of the property’s frontage are not sufficient. I therefore do not find fault in the Council’s decision to refuse Mr F’s application.

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Final decision

  1. There was fault by the Council for which it has already apologised. I am satisfied that is a suitable remedy for the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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