The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council says the complainant must get planning permission to extend his dropped kerb. This is because there is insufficient evidence of fault by the Council and there are other agencies who could consider the matter.
The complaint
The complainant, whom I refer to as Mr X, disagrees with the Council’s decision that he must get planning permission before applying to extend his dropped kerb. Mr X wants an apology and £900 compensation.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr X and the Council. This includes the complaint correspondence and the dropped kerb guidance. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.
My assessment
Mr X has a dropped kerb. He applied to extend it by two low kerbs. Mr X wanted to keep costs down and extend the dropped kerb at the same time as he was having other work done. Mr X says not being able to do the works at the same time will cost more money and he wants compensation to reduce that loss.
The Council told Mr X he would first need to get planning consent because he lives on a B road. Mr X says this is unnecessary because he already has a dropped kerb and planning consent to access the highway. Mr X says the Council’s dropped kerb guidance is wrong and he does not need planning consent. In response the Council confirmed Mr X does need to apply for planning consent. It said that permitted development rights do not apply because he lives on a classified road.
I will not investigate this complaint because there is insufficient evidence of fault by the Council. The guidance says planning consent is needed to apply for a new dropped kerb or to extend a dropped kerb. This applies when the applicant lives on a classified road. Mr X lives on a classified road so there is no suggestion of fault in the Council’s decision that he must first get planning permission before applying to extend his dropped kerb.
Mr X disagrees and says planning consent is unnecessary. It is not our role to determine if Mr X’s view is right or wrong in law. He could apply to the planning authority for a certificate of lawful development as he thinks consent is not needed. If the authority refuses the application Mr X could then appeal to the Planning Inspector who would decide if the dropped kerb extension needs planning consent. Consent might not be needed if the planning authority decides the work is de minimis but that is a decision for the planning authority to make. And, as that is a decision for the planning authority, there is nothing to suggest the Council’s dropped kerb guidance is wrong.
The Council’s response focused on why the application was not covered by permitted development rules. And, this is correct. However, the focus of Mr X’s complaint was not about permitted development but on his assertion that he does not need to apply for planning consent. But, while the Council may not have identified Mr X’s key point, this does not affect the decision that Mr X needs to apply for planning permission so an investigation is not needed.
Final decision
We will not investigate this complaint because there is insufficient evidence of fault by the Council and there are other organisations who could consider the matter.
Investigator's decision on behalf of the Ombudsman