Summary: Mr and Mrs X complained about the Council's decision to refuse their application for a dropped kerb. The Council was not at fault.

The complaint

1. Mr and Mrs X complained about the Council's decision to refuse their application for a dropped kerb. They said the Council's decision has caused them unnecessary frustration and means Mrs X cannot safely and comfortably access the house.

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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. 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)
3. 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:
• all the information Mr and Mrs X provided and discussed the complaint with them;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies and relevant law and guidance.
5. Mr and Mrs X 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

Relevant law and guidance

6. The Council's policy says it will not remove healthy street trees to allow for a dropped kerb. It may also refuse an application if the dropped kerb would ‘unduly disturb the root protection zone of any trees located on the highway’.
7. The Council uses the National Joint Utilities Guidelines to determine the extent of a tree’s root protection zone. The Guidelines say it is the circumference of a tree multiplied by four, or the area beneath the tree’s canopy. Only necessary works should be undertaken in the protection zone and only by hand.

What happened

8. In 2018, Mr and Mrs X applied for permission to install a dropped kerb. There is a tree on a public footpath directly in front of Mr and Mrs X house.
9. The Council says its officer considered how close the potential dropped kerb was to the tree’s root protection zone. The kerb would have been within the zone and so risked killing the tree. An assessment found the tree was healthy. It therefore denied the application.
10. Mr X appealed the Council's decision in late November 2019. He said:
• he had hired a tree surgeon to assess the tree, who said it would not be harmed by the dropped kerb;
• it was not right to ask Mrs X to park in the garage at the back of their house due to her mobility problems.
11. The Council responded in early December to say it had considered Mr X’s emails, comments from officers and a senior manager. It was satisfied with the original decision because the kerb would damage the tree’s roots and so risk its overall health. Mr X’s application did not show he had exceptional reasons to justify harm to the tree. It asked Mr X to send it a copy of the tree surgeon’s report for it to consider.
12. Mr X said the Council's decision not to approve the application was discriminatory towards Mrs X because of her mobility issues. The Council acknowledged Mrs X’s disabilities but confirmed the original decision. It reminded Mr X to send the tree surgeon’s report.
13. Mr X continued to contact the Council about the application and sent it the tree-surgeon’s report through a councillor. In mid-January 2020, the Council said it had considered the tree surgeon’s report. It remained satisfied the dropped kerb would harm the tree and so would not overturn its decision.
14. Mr X remained unhappy and asked why the dropped kerb would cause unreasonable damage when the Council had recently installed bollards close to the tree trunk. In its response to my enquiries the Council said the bollards would not harm the tree because the area of construction was much smaller.

Findings

15. The Ombudsman cannot question a council’s decision if it is made without fault. I am satisfied the Council properly considered if the proposed dropped kerb would harm the tree. It considered the facts of Mr and Mrs X’s application, including Mrs X’s disability, and the location of the kerb in relation to the tree’s root protection zone. The Council made its decision in accordance with its policy so was not at fault.

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Final decision

16. I have completed my investigation. I have not found evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman