Summary: Mr C complained the Council unreasonably refused his request for a dropped kerb at the front of his property which meant he could not park off-road or have an electric car. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council unreasonably refused his request for a dropped kerb at the front of his property. Mr C says the Council has not applied its policy consistently and has allowed other dropped kerbs in similar circumstances to his property.
2. Mr C says because of the Council’s fault he cannot park off-road which also means he cannot have an electric car.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

7. The Council’s current vehicle crossover policy is dated April 2020 and was approved in March 2017. The policy has only been amended to update the fee required, appeal section and other minor updates since its introduction.
8. The above policy sets out the minimum standards that must be met to have a crossover and that an application which did not meet these standards would be refused. The minimum standards set out tin the Council’s policy that are relevant to this complaint are:

“d) Junctions - A proposed vehicle crossover must not be within 10m from a road junction or traffic signal…” and

“f) Trees – Highway trees will not be removed to allow a vehicle crossover. If there is conflict with an established street tree on the public highway, a vehicle crossing cannot be constructed within the root protection area (RPA) of the tree in accordance with British Standards (currently BS 5837:2012). As a guide, for a tree with a single stem, the RPA is calculated as 12 times the stem diameter, measured at a height of 1.5m above the ground level…”

9. The policy states that it will only consider applications that comply with the current policy and any previous policies are withdrawn and no longer apply from the date of the formal adoption of the new policy. The policy makes clear that older, historic similar crossover installations in the same area do not necessarily mean that a new vehicle crossover application will be approved under the current policy.
10. The policy requires an application fee of £126 which is non-refundable and says the final decision notice can only be appealed in exceptional circumstances.
11. Mr C applied to the Council for a vehicle crossover on 14 August 2020. Mr C has answered “no” to the checklist questions about whether his application conflicts with the requirements about street trees or distance to a road junction. The Council acknowledged receipt of the application and fee the same day.
12. The Council inspected the application site and has provided photographs from this visit showing the location of a highway tree and road junction with relevant measurements.
13. The Council wrote to Mr C on 18 August to refuse his application and gave two reasons. Firstly, the Council explained it had used the relevant British Standard to decide the RPA of the highway tree by measuring the tree stem diameter at a height of 1.5 metres from the ground level which was 22 inches and multiplied this by 12 to provide the RPA of 264 inches. This did not leave enough room to extend the existing crossover. The Council also stated Mr C’s property was within 10 metres of the road junction. The Council has confirmed the distance from Mr C’s property to the road junction is approximately 6 metres.
14. In its response to the Ombudsman, the Council has accepted the reference to an existing crossover at the front of Mr C’s property was a typing error. The letter should read that the RPA did not leave enough room to provide a crossover. I am satisfied this typing error does not affect the Council’s assessment of the application.
15. Mr C contacted the Council on 20 August and asked to appeal the decision as he only needed a small crossover to allow a charging point for an electric car and because the Council had allowed other dropped kerbs in similar circumstances nearby. Mr C provided photographic evidence of these.
16. The Council responded the same day to say Mr C’s application did not meet the policy requirements and there was no right of appeal in these circumstances but noted he could make a complaint to the Ombudsman. It would have been preferable if the Council's response had been clearer that it was not considered Mr C had provided any exceptional circumstances in line with its policy on appeals. However, I do not consider this affected the Council’s consideration of the application itself.
17. The Council has confirmed that there are a number of older crossings around the area which had been historically installed near to trees and road junctions but these would have been installed in compliance with Council policy applicable at the time they were constructed. The Council says that vehicle crossovers installed in the past under a different policy do not set a precedent for future applications. This is in line with the information contained in the Council’s current policy.
18. The Council says it is sympathetic to Mr C’s circumstances but concludes it would not be acting responsibly if it allowed the installation of a vehicle crossover in a position that is now considered potentially hazardous to users of the public highway. This is a decision the Council is entitled to reach.
19. The Council has provided good evidence it assessed Mr C’s application in line with its published policy including visiting the site to inspect if the application complied with the published minimum standards. The Council wrote to Mr C to provide the reasons why his application did not meet the minimum standards. These requirements are clearly set out in the Council’s policy and highlighted in the checklist which Mr C completed as part of his application. This provided enough information for Mr C to have understood his application did not meet the minimum standards relating to highway trees and road junctions and that his application was likely to be refused with the loss of his application fee.
20. I have found no evidence of fault in the Council’s decision making process and it is not open to me to question the decision it has reached in these circumstances. The Council has also provided cogent reasons why there are older vehicle crossovers which do not meet the current policy requirements. This does not provide grounds for the Council to depart from its current policy and allow Mr C’s application.

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Final decision

21. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman