Summary: We will not investigate this complaint about an unsuccessful application for a dropped kerb. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, disagrees with the Council’s decision not to allow him to build a dropped kerb.

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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. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I read the complaint and the Council’s response. I considered guidance on dropped kerb applications and looked at photographs of the proposed site. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Dropped kerbs

4. The pre-application guidance, and the rules, say an application may not be approved if there is less than 45m clear visibility along the road from the proposed site. This is the minimum visibility requirement on a 30mph road. The pre-application guidance asks people to consider the guidance before submitting an application and paying the non-refundable fee. The website explains the Council will write to the applicant either refusing the application or sending a quote if the application has been approved.

What happened

5. Mr X applied for a dropped kerb. On the application form Mr X said he did not have less than 45m visibility from the proposed access. Mr X says he answered in this way because the guidance did not say there must be 45m visibility in both directions. An officer visited and marked out the proposed site. Mr X says the officer indicated the application would be approved. Mr X then spent money preparing the site.
6. The Council rejected the application because there is not 45m visibility in both directions. Mr X appealed. In response the Council again visited the site, re-checked the application, and spoke to Mr X. The Council confirmed its decision because the application does not meet the visibility rule.
7. In response to his complaint, the Council explained that the officer does not recall saying the application would be approved. The Council apologised that Mr X thought the application had been approved. The Council explained that it sometimes relaxes the 45m rule in roads with slower speeds and traffic calming. It said it would not relax the rule in this case because Mr X lives on a 30mph road which is relatively straight with no traffic calming. The Council said it had properly considered the appeal. It said it would not refund the application fee because it had done work to process the application.
8. Mr X says the Council has failed to exercise discretion and that other applications have been approved which do not have 45m visibility. He says the Council made its appeal decision just by driving past and refused the application because of a parked car which was a temporary issue. Mr X wants the Council to approve the application. He says it is unfair that the Council does not refund the fee and the says the Council did not handle the application correctly.

Assessment

9. I will not start an investigation because there is insufficient evidence of fault by the Council. The rules say the Council will refuse an application if the visibility is less than 45m on a 30mph road. I have looked at photographs of the proposed site which show that Mr X lives near a bend and there would be visibility of less than 45m in one direction. The Council’s decision is consistent with the rules so there is no reason to start an investigation. I appreciate the guidance does not state the restriction applies in both directions but it is clear that visibility is flagged as an issue and one that was likely to be relevant as the access would be near a bend. In addition, the Council did not refuse the application due to a parked car as Mr X has suggested.
10. Mr X says the visibility issue was not enough to justify refusal and the Council should have exercised discretion. However, the Council has explained that it refused the application on road safety grounds and that it would not exercise discretion due to the conditions on his road. Mr X also says the proposed access would be safer than his current access. That may be so; but the rules do not say that an application which would normally be refused, will be approved, if it would be safer than an existing access.
11. Mr X says his appeal was not properly considered and the officer just drove past. But, in addition to driving past, which shows the officer was aware of location and the road, he also examined the application and spoke to Mr X. It is not clear what else he could be expected to do.
12. I cannot comment on the sites which Mr X says have crossovers without meeting the 45m rule but each application is based on whether it satisfies the requirements – which Mr X’s does not. In addition, the Council assesses each application on its own merits and there may be circumstances, as described above, when a rule is relaxed. But, the key point is that there is no suggestion of fault in the way the Council assessed, or handled, Mr X’s application. We do not act as an appeal body and we cannot intervene simply because a council makes a decision that someone disagrees with. I also have no power to tell the Council to approve the application, especially as the application does not meet the visibility rules.
13. It is unfortunate that Mr X thinks he was told, early on, that his application would be successful. But, at that time, the Council had not made a decision and it may have been helpful for Mr X to have waited for the formal decision letter before spending money on preparatory work.
14. Mr X says it is unfair not to refund the fee and the Council did not do any work preparing the site. But, the Council spent time assessing the application and it explains in advance that the fee is non-refundable.

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Final decision

15. I will not start an investigation because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman