Summary: Mr X complained the Council granted planning permission for a development which required off street parking but subsequently refused his application for a dropped kerb. The Council’s failure to make Mr X aware, when considering his planning application, that he would need to make a separate application for a vehicle crossover is fault. The Council has apologised and taken appropriate action to resolve this complaint.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council granted planning permission for a development which required off street parking but subsequently refused his application for a dropped kerb. Mr X also complained that since granting planning permission the Council has installed a parking bay in front of part of the plot.
2. Mr X says parking in the area is limited and not being able to access the off-street parking causes an inconvenience.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X; and
• Mr 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

6. Several years ago the Council grant planning permission for Mr X to build a two-storey dwelling attached to the side of an existing dwelling. The existing property had off-street parking and the application proposed one parking space for the existing and one for the new dwelling. There was a vehicle crossover to the existing property and the planning application form confirmed it did not propose a new or altered vehicle access to or from the public highway.
7. Shortly after granting planning permission the Council consulted on proposed parking changes in the area, including installing a parking bay in front of Mr X’s property. The Council sent letters to every house in the area, including Mr X’s existing property. It received responses from seven properties in this street. Mr X does not live in the property and says he was unaware of the proposal to install a parking bay. The parking bay was installed in 2020.
8. The existing vehicle crossover allowed access to a parking space for the new property, but not the existing property. In 2022 Mr X applied for a vehicle crossover to allow vehicle access to the existing property. The Council refused the application on two grounds:
• the proposed parking area was too short and did not meet the minimum required by the Council’s Crossover Policy; and
• it would be necessary to amend a Traffic Management Order (TMO) to remove the parking bay.
9. Mr X appealed the decision. He told the Council the existing house had had access to the driveway for many years as part of the larger plot and that the planning permission showed parking for the new and existing houses. He asked the Council to review its decision so that the existing house could continue to enjoy off street parking.
10. The Council responded under its complaints process and apologised for the delay. The Council confirmed the recommendation to refuse the vehicle crossover was correct, but it wrongly referred to the neighbouring address. Mr X questioned this error and asked for the decision at the correct address to be reviewed.
11. The Council acknowledged the error and confirmed highways service would discuss the position for Mr X’s property with the planning service to confirm whether the crossover was covered by the planning permission. It noted the frontage at Mr X’s property was also shorter than that required by the Council’s Crossover Policy.
12. In its further response, the Council reiterated that from a highways perspective the application for a crossover would be refused on the two grounds originally given. Having considered the planning application the Council noted Mr X had indicated on the application form there would be no new or altered vehicle access to or from the public highway. As such a new crossover access was not consider as part of the planning application. On this basis the Council confirmed it would still refuse the crossover application.
13. Mr X was not satisfied by the Council’s response and asked his local councillor for assistance. The complaint process was put on hold to allow for further correspondence and clarification from officers. In February 2023 the Council confirmed its position was that the crossover would be refused.
14. In June 2023 Mr X asked for his complaint to be reviewed at the next stage of the formal complaints procedure. He asserted the Council's investigation was not thorough and did not fully address his complaint. Mr X noted the conditions of his planning permission required the new house and existing house to have a parking space. He argued he needed the vehicle crossover so that the existing house could access the parking space and that the Council had ignored the planning permission when installing the parking bay.
15. The Council’s response noted it had previously advised Mr X that the planning permission condition related to the provision of the car parking area. This had been provided and the fact it was not used or usable as there is no access was not a breach of the planning condition, or a requirement of the application. It confirmed that from a planning perspective no planning conditions had been broken. It also confirmed the planning permission does not give authorisation for a vehicle crossover, which is a separate application process.
16. It went on to note the reasons for the refusal of the crossover application were the insufficient depth of frontage and the location of the parking bay across the front of the property. The Council confirmed these were valid reasons for the refusal of a crossover application. However it also acknowledged the parking bay was installed after planning permission had been granted and that the Council had not raised the need for a crossover application at the time of planning approval.
17. The Council has adjusted its internal process so that cases such as Mr X’s are picked up in the future. Where a planning application is made for off street parking, the Council will make applicants aware that a separate crossover application is required and approval given before the planning application can be decided.
18. The Council acknowledged it had not made clear, until February 2023, that the grant of planning permission did not by default mean a crossover would be granted. It noted that the initial application did not state a new or altered vehicle access would be required to or from the public highway, which would have initiated a conversation about the separate crossover application process. However, it considered there were several occasions when officers should have identified the need for a crossover application prior to planning approval.
19. The Council apologised the situation had not been dealt with earlier and more effectively. It recommended Mr X’s crossover application be allowed whilst noting:
• The depth of the frontage is short of the policy requirement. However the width of the area exceeds the minimum requirement and given the mitigating circumstances the shorter frontage depth should be acceptable.
• The new crossover will be subject to the removal of the parking bay, which involves a statutory consultation process;
• The bay removal process should commence as soon as possible and the Council will meet the cost of consultation and removal, subject to formal consent, as a gesture of goodwill; and
• Mr X will need to meet the normal charge for installing the crossover.
20. Mr X is not satisfied by the Council’s response and has asked the Ombudsman to investigate his complaint. He would like the Council should remove the parking bay without the need for public consultation. Mr X believes the Council acted illegally in installing the parking bay in 2020 and should not have to follow statutory process to remove it. He asserts residents were consulted when he applied for planning permission and should not now be given a second opportunity to comment. He is concerned that residents will object to the removal of the bay and the bay will have to remain in place.
21. In response to my enquiries the Council has reiterated that the case involves two separate processes, an application for planning permission and an application for a vehicle crossover. It says granting one does not provide validation for the other. The Council again acknowledges it was unfortunate the issue was not picked up initially when Mr X submitted the planning application. And that before the need for a crossover was identified a parking bay was installed in front of Mr X’s property. It has also reiterated that Mr X’s crossover application failed on two points, the depth of the hardstanding and the position of the parking bay.
22. The Council confirmed it has now agreed to grant the crossover and, subject to formal TMO consultation, to remove the parking bay. It must follow due process to remove an on-street bay covered by a TMO to ensure the remainder of the bays in the area are legally enforceable. The Council says the statutory process to remove the parking bay has already started and consultations were due to go out in late November 2023. It has confirmed that if it receives any objections to the proposals it will need to give them full consideration before making a decision on whether to proceed with the proposed changes.

Analysis

23. The Council accepts it did not advise Mr X, when considering his planning application, that he would need to make a separate application for a vehicle crossover. The failure to make Mr X aware that the planning permission did not automatically mean a crossover would be granted, and that he would need to take further action is fault.
24. The Council has now amended its processes to ensure it makes applicants who apply for off-street parking aware of the need for a separate crossover application. This change in process is to be welcomed.
25. But for the fault, it is possible that Mr X would have applied for a crossover sooner and that the parking bay would not have been installed in front of his property. This does not however mean the crossover application would definitely have been granted. The proposal does not meet the Council’s Crossover Policy criteria for the size of the driveway and could have been refused on this ground alone. We would not criticise the Council for adhering to its published policy. The Council has now exercised discretion to allow the crossover, but it was under no obligation to.
26. The Council has also agreed, subject to the consultation process, to remove the parking bay. Mr X would like the Council to remove the parking bay without following the statutory process and in particular without consulting residents. The Council cannot do this. It must follow the statutory process to amend a TMO. The Ombudsman is unable to direct the Council to deviate from or to influence this process.
27. Mr X says he was unaware of the Council’s intention to install a parking bay in front of his property and asserts the parking bay was installed illegally. There is no evidence of this. Mr X does not live at the property so may not have received or been aware of the Council’s consultation letter or proposals. However, other residents did respond to the consultation and there is no evidence the TMO was not properly made.
28. The Council has apologised for the failure to make Mr X aware of the need for a separate crossover application and has taken appropriate action resolve this complaint.

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Final decision

The Council’s failure to make Mr X aware, when considering his planning application, that he would need to make a separate application for a vehicle crossover is fault. The Council has apologised and taken appropriate action to resolve this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman