Summary: Mr H has made a complaint about the Council’s handling of his application for a dropped kerb. He says the Council made it a requirement he build a hardstanding driveway before works could commence and that it later refused to complete the works because of tree roots. Mr H says he has lost money from building the hardstanding and his application fees. The Ombudsman has not determined fault by the Council with respect to its decision not to continue with the works at Mr H’s property. We have however found fault with respect to the Council’s handling of his applications and that it required him to have a driveway in place prior to the commencement of works and so we have recommended a remedy.

The complaint

1. The complainant, who I refer to as Mr H, is making a complaint about the way the Council managed his application for a dropped kerb outside of his property. Specifically, Mr H says:

1. the Council made it a condition that he build a hardstanding drive before work to drop the kerb could begin;

2. there was a substantial delay by the Council in considering his application subsequent to building a hardstanding drive and;

3. the Council approved his application, took payment from him and later confirmed it would be unable to proceed with the works due to tree roots.

2. Mr H explained he lost approximately £4,000 in application fees and the cost of building the hardstanding driveway. Further, he says this matter has been a source of distress and uncertainty. As a desired outcome, Mr H wants the Council to refund the application fees, reimburse him the cost of the hardstanding and compensate him for time and trouble.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. 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).

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How I considered this complaint

6. I have read Mr H’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable policy. Both Mr H and the Council commented on a draft of my decision before a final decision was made.

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What I found

7. The law regulating vehicle crossings (such as dropped kerbs) over footways and pavements and verges is set out in Section 184 of the Highways Act 1980.
8. Dropped kerbs are lowered areas of pavement outside of a property that have been strengthened and made into a ramp shape to allow for a vehicle to cross the pavement and park onto the property.
9. An application can be made to the Council for a dropped kerb to allow for vehicle access. The Council’s assessment form requests applicants to specify whether the proposed crossing would be obstructed by street trees, grass verges, guard rails or lighting columns. It says it may not be possible to site the crossing at the proposed location due to the presence of any of these obstructions.

Chronology of events

10. In January 2020, Mr H put in an application to the Council for a dropped kerb. This was rejected by the Council due to his property not currently having hard standing driveway which was a condition for the commencement of works.
11. In April 2020, Mr H put in a further application having now installed a driveway with hardstanding at his property. However, the Council failed to respond to the application. The Council said this was due to pressures on its services in light of the Covid-19 pandemic.
12. In May 2020, Mr H put in a third application to the Council for reasons of not hearing from then Council in respect of his second application.
13. In June 2020, the Council agreed in principle to the application and provided a quote to Mr H for the works. There was however a delay before the works started. The Council say this was because of a backlog as a result of the suspension of the service during the Covid-19 pandemic.
14. In addition, the Council did not specify the circumstances in which works may not be able to go ahead, such as because of tree roots causing an obstruction.
15. In August 2020, the Council started work at Mr H’s property and discovered deep tree roots which ran underneath the proposed driveway. It said this would prevent the kerb from being dropped. It was then suggested the tree be removed. However, the Council made an assessment that the removal of the tree outside of Mr H’s property would go against adopted Council policy. It said street trees are valuable public assets and their removal would set a negative precedent, particularly in light of climate concerns.
16. Mr H later put in a complaint to the Council as he had not heard any update as regards to the works continuing his property.
17. In December 2020, the Council responded to Mr H under its complaints policy and procedure. It apologised for the delay in handling Mr H’s application for a dropped kerb. It said that once Mr H had built a hardstanding driveway, its officers began, in good faith, to commence the works. However, during the course of the works, the Council said it discovered anchor tree roots from a tree in the general location. The Council’s Arborcultural team did not consider that the work could not take place and declined to continue.

My findings

Dropped kerb

18. Mr H’s perception is that it was unfair the Council made it a condition that he build a hardstanding driveway before discovery of the tree roots. He says he has lost money because of the Council’s decision that the works could not go ahead as planned. I have therefore assessed whether Mr H was properly informed about the circumstances in which works may not go ahead prior to him building a hardstanding driveway.
19. The Council has said that it should be noted the requirement was for there to be hardstanding in place for a dropped kerb and not a driveway. It says therefore that Mr H went above and beyond complying with the condition. I have assessed the Council’s dropped kerb application process and I am not satisfied this clearly distinguishes between a ‘driveway’ and ‘hardstanding’. Specifically, the application process states the following at the beginning:

“your driveway or extension to a driveway must already be in place for us to provide costs, assessment and approval.”

20. On that basis, I believe Mr H was acting reasonably and on the Council's guidance when he went beyond installing ordinary hardstanding.
21. In this case, the Council said it was not possible to identify the tree roots before works commenced due to the unusual way in which these roots had grown. That said, the Council said a quotation form was sent to Mr H which outlines that works may not be able to go ahead in the event of obstructions by trees. It said the conditions were later accepted by Mr H following receipt of payment.
22. Mr H disputes that he ever received the mentioned quotation form from the Council. Further, the Council has been unable to provide a copy of the email sent to Mr H which attached the form. The Council later accepted it failed to communicate the possible circumstances in which works may not be able to go ahead. For this reason, the Council was at fault.
23. In my view, Mr H was not properly able to balance the risks before proceeding to install a driveway. In addition, I feel because of the Council’s fault, he had a legitimate expectation without exception that the dropped kerb would go ahead. This fault led Mr H to install a driveway without fear of consequence and at a large expense and so I consider he suffered an injustice.

Delays in the process

24. There was a significant delay by the Council in actioning Mr H’s second application. There was also a delay in the Council commencing works following payment being taken from Mr H. The Council has said this was due to pressures on its services in light of the Covid-19 pandemic. I consider this explanation to be reasonable, but I believe the Council should have contacted Mr H to explain this and provide an update. In my view, this was fault by the Council. This led to uncertainty and stress to Mr H. I am therefore recommending a remedy in respect of his time and trouble.

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Agreed action

25. In light of the injustice identified above, the Council will, within one month of a final decision, take the following actions:

• Refund all the fees Mr H paid to the Council associated with his applications.
• Pay Mr H £100 in recognition of the delays and his time and trouble.
• Pay Mr H £1,000 to reimburse his expenses for installing a driveway.

26. In addition, I have considered whether the Council need to implement any policy changes to improve its services. I consider the Council needs to properly distinguish between ‘hardstanding’ and a ‘driveway’ in its application process for a dropped kerb. Moreover, it should make all customers aware of the limited circumstances in which works may not be able to go ahead prior to requiring the installation of a driveway or before taking payment. That said, the Council has said it has already implemented policy changes in this respect and so I am satisfied no further remedy is required in this respect.

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Final decision

27. The Council was not at fault with respect to its decision-making not to continue works at Mr H’s property. However, the Council failed to properly make Mr H aware of the limited circumstances in which works may not be able to go ahead before requiring a driveway to be installed. I have also identified fault with the way the Council handled Mr H’s applications. These faults caused Mr H an injustice and so I have recommended a number of remedies.

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Investigator's decision on behalf of the Ombudsman