Summary: We will not investigate Mr X’s complaint about the Council’s involvement in a new development which has resulted in the narrowing of a road in his area. There is not enough evidence of Council fault, nor sufficient significant personal injustice caused to him by the matters complained of, to warrant an investigation. We also cannot achieve the outcome he wants from his complaint.

The complaint

1. Mr X lives about a mile from a new residential development. The local planning authority (LPA) gave planning permission for the development several years ago. The permission involved changes to the highway, including the addition of a footway next to the existing roadway. The developer applied to the LPA to vary the works to not create an additional footway but build it on the roadway, narrowing the road available to vehicles. Kent County Council was the highways consultee on the applications, in its role as highways authority. Mr X complains the Council:
1. has allowed the narrowing of the road next to the development;
2. allowed the change to the planning permission under highways law, when it should have gone back to the LPA under planning law.
2. Mr X says the highway design is now dangerous and impedes access to a nearby property. He wants the highway to be returned to its original specification to prevent further accidents and near misses.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

5. I considered information from Mr X and the Council, relevant online planning information and maps, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in the decision-making process and but for that fault officers would have made a different decision. So we consider the processes they have followed to make their assessments and decisions. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. The LPA permitted the development and the variation of the highway plans. The Council was not party to those applications, which were between the developer and the LPA. Mr X’s complaint about how the highways variation application was dealt with is not a matter this Council was involved in. The LPA decided the narrowed road option was acceptable in planning terms. It was for this Council, as the highways authority, to then determine whether the developer’s proposals were acceptable in highways terms. The Council’s officers assessed the information provided and determined that, in their professional judgement, the amended highway plan was acceptable.
8. There is not enough evidence of fault by Council officers here to warrant investigation. Officers considered relevant information to make their decision on the highway amendments, a decision they were entitled to make. We recognise Mr X may disagree with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Even if there was fault by the Council in its highways role here, we will not investigate. Mr X’s property is about a mile from the development site so is not directly affected by the highway change. That Mr X would need to comply with a new highway design or road signs and use some caution when deciding to use that route is not sufficient significant personal injustice to him to justify an investigation. We note Mr X says access to a nearby existing property has been affected by the highway changes, which the Council disputes. But in any event, that claimed impact on someone else’s property is not Mr X’s own injustice. Mr X is no more affected by the amended highway than any other user of it. There is insufficient significant personal injustice caused to him by the matters complained of to warrant us investigating.
10. We note the outcome Mr X wants from his complaint is for the highway to be returned to its original specification. We cannot order a council to change highway designs which it and an LPA have accepted. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.
11. If Mr X has concerns about the planning decisions and actions of the LPA in this matter, that would be a separate complaint he might pursue with the LPA first. If he complains and is dissatisfied with the LPA’s final response, he may bring the complaint to us. However, our consideration of any such LPA complaint we might receive from him would also involve us applying our remit, including the test of his personal injustice.

Back to top

Final decision

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to warrant an investigation; and
• there is insufficient significant personal injustice caused to him by the matters complained of to justify us investigating; and
• we cannot achieve the outcome he wants from his complaint.

Back to top

Investigator's decision on behalf of the Ombudsman