Summary: Mr C complained about the Council’s decision to refuse his application for a vehicle crossover. We have found fault by the Council in its communication with Mr C but consider the agreed action of an apology, reconsideration of his appeal and guidance to relevant staff provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the Council’s decision to refuse his application for a vehicle crossover at his property. Mr C says the Council did not consider his particular circumstances or supporting information during the original application process or subsequent appeal. Mr C also says the Council has provided contradictory information.
2. Mr C says because of the Council’s fault, his application has not received proper consideration.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have also considered information from the Council. 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

Key events

7. Mr C applied to the Council for a vehicle crossover (dropped kerb) to access his property. The application form highlights there is a non-refundable assessment fee of £183.90 and provides a link to the Council’s guidance notes. Mr C also provided a copy of the planning permission he had obtained for a dropped kerb and area of hardstanding for two parked cars in May 2023 (subject to a vehicle crossover licence from the Highway Authority).
8. The link in the above application form is to the Council’s ‘Vehicle Cross Over Application Criteria’ document dated October 2021. This says:

• In order to maintain as much on-street parking as possible, a second access in urban and suburban areas (this includes access from an adjacent road at the side or back of the property) is highly likely to be refused unless significant safety or community benefit can be identified.
• If you have an existing access to a garage or hardstanding adjoining your property, WSCC will not permit a second access.
• WSCC do not permit the construction of vehicle accesses in parking laybys. This is to ensure that existing designated residents and visitor parking is maintained for all on a first come, first serve basis. An exception to this may be when there are already parking restrictions in a layby that would prevent parking from taking place. It may also be possible to have an access over the taper of the layby, however, no part of the dropped kerb must be in the full width of the layby.

9. The Council visited the site towards the end of July 2023 and has provided two dated photographs from this visit.
10. The Council wrote to Mr C at the end of July to say it was not able to give consent for a new vehicle crossover because it was not in accordance with its guidance. The Council explained its site inspection above had found the property already had an access and it did not allow properties to have more than one access in urban and suburban areas unless there were exceptional circumstances. The Council also explained that it did not allow vehicle crossovers where the property fronted on to a layby. The Council noted the layby to the front of Mr C’s property was available for the public to use and installing a vehicle crossover at this location would remove at least one parking space. The Council provided details of the appeal process which included advice that the existence of other historic crossovers nearby that did not comply with the current guidance would not constitute valid grounds for appeal.
11. Mr C appealed to the Council in early August. Mr C noted other crossovers in his road had been allowed which fronted on to a layby. Mr C also noted the guidance allowed some circumstances when a crossover may be allowed over the taper of a layby or when there was already parking restrictions in the layby which would prevent parking. Mr C noted the layby outside his property was tapered and was not full-sized which he considered restricted parking in the layby. Mr C also disputed the property had an existing access and provided two photographs of the front of his property to show this and the size of the layby. Mr C accepted a crossover would remove one parking space for public use but noted his planned driveway would provide off road parking for his two cars. Mr C also accepted he had an alternative rear access to his property but explained this was not well maintained and parked vehicles often blocked this or made turning round difficult which meant he did not use it.
12. The Council rejected Mr C’s appeal in early August. The Council explained the application did not comply with its guidance that set out an application was highly likely to be refused in urban and suburban areas if it had already had a separate access (which included from an adjacent road at the side or back of a property) unless a significant safety or community benefit could be identified. The Council explained the same applied if the property benefitted from a garage or hardstanding. The Council clarified that the previously provided reason for refusal about the layby did not apply as it accepted the proposed crossover would be across the leading taper of the layby. The Council provided details of how to complain to the Ombudsman.

My consideration

13. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
14. The Council rejected Mr C’s application as it identified his property had access to the rear. This restriction is set out in the Council’s guidance which forms part of the application form and it is made clear such an application is likely to be refused unless “significant safety or community benefit can be identified.” The Council provided the reasons for its decision to refuse Mr C’s application in its July letter. The Council has accepted it should not have included the layby as an additional reason for refusal as any crossover would have been through the taper of the layby which can be allowed under its own application criteria. This is fault. However, I do not consider this fault alone caused Mr C a particular injustice as the Council had also provided the existence of a rear access as a reason for refusal. This reason for refusal remained.
15. In his appeal, Mr C suggested he would be removing two cars from using the existing layby by parking his own two cars on the proposed driveway and provided the reasons why he did not or could not use the rear access. The Council’s appeal decision does not directly address the additional information Mr C had provided but simply repeated the second access restriction with no reference to how it had considered the exceptional grounds of ‘significant safety or community benefit’.
16. Although a finely balanced decision, I consider the failure to provide a more detailed response to Mr C’s appeal constitutes fault. When taking this failure together with the incorrect reason provided in the initial refusal letter, I consider Mr C has been caused a degree of uncertainty that his application was properly considered.

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Agreed action

17. The Council has agreed to take the following action to provide a suitable remedy to Mr C:
1. Provide a written apology for the poor communication identified above within one month of my final decision.
2. Reconsider Mr C’s appeal and write to him with the outcome within six weeks of my final decision. The Council’s appeal decision should address directly the grounds raised by Mr C in his appeal including but not limited to whether the rear access qualifies as being an available access given the issues he raised and whether the removal of his own two cars from the existing layby provides a ‘significant safety or community benefit.’
3. Provide guidance to relevant staff on the drafting of decision and appeal decision letters within six weeks of my final decision to ensure they are accurate and provide contemporaneous evidence the key information and any appeal grounds have been properly considered.
18. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
19. The Council should provide us with evidence it has complied with the above actions.

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Final decision

20. I have completed my investigation as I have found evidence of fault but consider the agreed actions above provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman