The Ombudsman's final decision
Summary: Mr X complains the Council approved an application for kerb lowering where the gates open onto the pathway in breach of the Highways Act. We did not find fault with the Council as the correct procedures were followed in granting the application.
The complaint
Mr X made a complaint about the approval for an application for kerb lowering on grounds of safety and reduced parking in the area. Further, the gates where the kerb will be lowered open outwards across the pavement in breach of Section 153 of the Highways Act.
Mr X would like the Council to review how applications are processed and approved, and ensure the gates are corrected to open inwards.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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) 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)
How I considered this complaint
I have considered: The information provided by Mr X and in discussion with him; The Council’s comments on the complaint and the supporting information it provided; and Relevant law and guidance.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance The Highways Act 1980 Section 184 of the Highways Act 1980 sets out the law on vehicle crossings being built over footways, pavements and verges. Dropped kerbs are vehicle crossings in this context.
The law says that when somebody applies for a vehicle crossing, the local authority can: accept the application; reject the application; or propose amendments to the application.
If the local authority approves the application, it should provide a quote to carry out the works. Once the parties agree a quote, the local authority should carry out the works “as soon as practicable”. This means as quickly as possible, considering the individual circumstances of the case.
Section 153 says doors or gates which open onto a street should not open outwards.
If the door or gate does open outwards the Council may give notice to the owner to alter it.
The Council’s policy The Council’s policy on dropped kerb applications is available on its website. It sets out details about how to apply, possible costs, and likely timescales.
It states that when applying for a dropped kerb the gates or doors should open inwards, with certain exceptions.
What happened Mr X raised an objection to the Council about granting a dropped kerb to a nearby property for three reasons; safety, restricted parking and the fact the gates opened onto the highway.
The Council said it followed the correct procedures in processing the application, so it would remain approved.
There is no automatic right to parking under the Highways Act 1980, and the Council say it considered the points raised in Mr X’s objection before granting the application.
In the stage two complaint, Mr X explains the gates open onto the highway in contravention of S.153 of the Highways Act.
The Council said in response the correct procedures were followed to grant permission for the kerb lowering. It thanked Mr X for bringing to its attention the fact the gates open outwards, and said it would pass this information to the relevant officer to be actioned to ensure the footway is not obstructed in the future.
The Council wrote to the owner of the property of the offending gates, asking them to make alterations to ensure the gates open inwards. There was also a follow up phone call, where the owner confirmed the works would be carried out.
The Council carried out an annual risk management inspection and no obstruction to the pathway was noted, and the Council says it will continue to monitor the situation in line with the Risk Management Policy.
Mr X says the gates still open outwards and brought his complaint to the Ombudsman.
Analysis There are no objection rights to an application for a dropped kerb.
The Council considered Mr X’s points and the application for the dropped kerb followed the correct process.
The Council’s web site has a section on how to apply for a dropped kerb. Here it states that gates should not open outwards, with certain exceptions. It also explains this on the online application.
The stage one response from the Council to Mr X says the application process was followed correctly, however the letter does not specifically refer to the gates.
The Council cannot refuse an application for a dropped kerb because the gates open outwards, as there is no reference to gates in Section 184 of the Highways Act (see paragraph 8 above).
The Council has given the owner notice to change the gates, and says it will continue to monitor them.
Mr X says the gates open twice a day. The Council could take the owner to Court but it chooses not to as in its view, gates occasionally opened outwards do not justify action.
In its response to the Ombudsman the Council said “engineering services has no charter for enforcement in these circumstances, as it is common for gates that lead onto the highway have double hinged gates that open both onto the highway and into private land. So long as the gates are not a persistent nuisance it is just expected that residents will use gates with courtesy towards other highway users.”
I therefore cannot find fault with the Council as it followed the correct procedure in dealing with the crossover application. It has used its discretion not to take action about the gates.
Final decision
I do not find fault with the Council for granting an application for kerb lowering, as the correct procedure was followed.
Investigator's decision on behalf of the Ombudsman