Summary: The Ombudsman will not investigate this complaint about the Council refusing the complainant’s application for a vehicle crossover. This is because there is insufficient evidence of administrative fault in the way the Council reached its final decision on the application.

The complaint

1. The complainant, whom I refer to as Mrs B, says the Council has failed to properly consider her application and subsequent appeal for a vehicle crossover at her home.

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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. We 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. (Local Government Act 1974, section 24A(6), as amended)
3. In that regard, 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

4. I have considered:
• Mrs B’s original complaint to the Ombudsman, and her email of 28 February 2020;
• Mrs B’s 16 November 2019 complaint to the Council and its 2 December 2019 Stage 1 complaint response;
• The Council's 9 August 2019 decision on the crossover application, Mrs B’s 12 August 2019 appeal, the Council's 16 August 2019 first-stage appeal decision, Mrs B’s 21 August 2019 second-stage appeal, and the Council's 6 September 2019 second-stage appeal decision;
• The 17 January 2019 and 5 April 2019 briefing notes to the Leader of the Council about the proposed changes to the Council’s previous crossover policy;
• The 14 May 2019 ‘non-key decision’ report presented to the Leader of the Council and the Cabinet Member for Transportation, requesting approval of the final version of the proposed, new crossover policy, and the related 31 May 2019 decision notice;
• The ‘Domestic Vehicle Footway Crossover Policy’ which the Council adopted, and which applied at the time of Mrs B’s application.
5. I also gave Mrs B the opportunity to comment on a draft version of this statement.

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What I found

Policy background

6. In early 2019, the Council proposed amendments to its vehicle crossover policy. I have seen two briefing notes to the Leader of the Council, which set out the options/amendments being considered. These briefing notes demonstrate that short frontage agreements were initially considered, but were not taken forward as part of the final policy adopted in July 2019.
7. The new policy says:

“Each application site will be assessed individually and on its own merits against current standards and policy.

Inevitably the adoption of this new policy will result in some future applications being refused, which under previous policies may have been successful. This will seem inequitable to some unsuccessful applicants, especially when other similar type properties in the immediate vicinity have crossovers. However, no previous policy or policies will take precedent to the current policy”

“A crossover will only be approved where a standard car parking space (2.4m wide by 4.8m deep) at 90 degrees to the highway can be accommodated on the front garden/forecourt of the application site….”

“Requests for reconsideration of a refusal decision will only be allowed if applicants can demonstrate:

1. That their applications have not been processed in accordance with the criteria set out in this policy, or
2. That there are exceptional circumstances that would justify an exception to be made to the policy.

The Authority without prejudice may exercise discretion when considering the grounds of any appeal and facts of an application”.

Summary of what happened

8. Mrs B applied for a vehicle crossover after the Council adopted its new policy. The Council refused her application because her driveway parking space would only be 3.8m deep, instead of the required 4.8m.
9. Mrs B appealed against the decision. She said she would only be parking a scooter on her driveway, and offered to enter into a short frontage agreement, so the Council could control the size of vehicles being parked there.
10. In the Council’s Stage 2 appeal response, it reiterated that the dimensions of Mrs B’s driveway did not meet the policy criteria, and said the size of the vehicle she proposed to park there was not a material factor in reaching its decision. It explained that short frontage agreements were considered when the policy was being reviewed, but were not supported. It concluded there were no exceptional circumstances to justify making an exception to the policy on this occasion.

Assessment

11. It is clearly unfortunate that Mrs B submitted her application for a vehicle crossover after the Council tightened its policy on when applications would be approved.
12. But it is not the Ombudsman’s role to re-determine Mrs B’s application, and we cannot question the merits of the Council’s decision unless there is evidence of administrative fault in the way it was made. I find there is insufficient evidence of fault in the way the Council reached its final decision on Mrs B’s application/appeal, to warrant the Ombudsman pursuing the complaint further.
13. In reaching this view, I am mindful that:
• the dimensions of Mrs B’s forecourt do not accord with the Council’s policy;
• it was ultimately for the Council to decide whether to include short frontage agreements as part of its new crossover policy;
• it was for the Council to consider Mrs B’s appeal reasons and then reach its own judgement on whether any exceptional circumstances existed to justify making an exception to its normal policy;
• Although Mrs B believes other crossovers have been approved which are contrary to the new policy, the policy clearly states that each application will be assessed individually and on its own merits;
• Although Mrs B might think other councillors should have been asked to validate the proposed changes to the policy, the Council presented these changes in a report to the Leader of the Council and the Cabinet Member for Transportation. The decision was not called-in by the Executive Scrutiny Committee, and I am unaware of any councillors expressing concern about the way the policy changes were approved.

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Final decision

14. The Ombudsman will not investigate Mrs B’s complaint. This is because there is insufficient evidence of administrative fault in the way the Council reached its final decision on her vehicle crossover application.

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Investigator's decision on behalf of the Ombudsman