The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision to reject his dropped kerb application on the basis his constructed driveway did not meet biodiversity requirements, which are not mentioned within its policy. We have not found fault by the Council.
The complaint
The complainant, whom I refer to as Mr X, complained the Council would not progress his application for a dropped kerb. It said due to the way the front driveway is constructed; it did not support biodiversity. Mr X said it unfairly made its decision as he built it in accordance with the Council's policy and guidance, which does not specifically mention requirements for biodiversity.
This has caused stress, frustration, and inconvenience for Mr X with the time and money already spent on constructing the driveway.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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 discussed the complaint with Mr X and considered his views.
I considered the Council’s communication and responses to Mr X’s complaint and information on the Council’s website about its vehicle crossover policy 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.
Background
Councils have powers to provide vehicle crossovers, also called a ‘dropped kerb’. A dropped kerb is lowered and strengthened pavement outside a property that allows people to access their driveway for off road parking.
The Council’s website says it provides a fee-paying service for the construction of vehicle crossings. At the time of investigation, it included links to “Guidance notes for a vehicle crossover” (‘the guidance’) and “Vehicle crossing policy” (‘the policy’), both dated March 2021. It asked for people to read them before applying.
The policy, under “Section 22. Surfacing and Drainage of Hardstandings”, stated “50% of the front area of the property should have ‘soft’ landscaping to comply with the Planning requirement and Council’s Green policy, with a minimum requirement of 30% for properties with narrower, shorter front gardens”.
This was repeated in the guidance. The guidance also stated, “Sustainable drainage will also be necessary for your hardstanding (where your car will stand), and you will need to use permeable materials. The details of your proposed hardstanding construction and the area of soft landscaping must be shown on your proposed layout on the application form” and “In the application form ‘soft landscaping’ refers to trees, plants and grassed areas”.
What happened In July 2021, Mr X submitted an application for a vehicle crossover.
In October 2021, the Council sent a cost “Estimate and Guidance only” email for the construction of the crossover. It confirmed Mr X would need to “convert his off-street parking area as set out in the layout plan which must include a minimum 30% soft landscaping either grass or a planted bed to help biodiversity. Please be advised that Grasscrete or similar products filled with shingle should not be used as this would be rejected on inspection”.
In November 2021, Mr X revised his layout plan to include a lawn area of 31% and a boundary wall. The Council approved the changes and Mr X made alterations to the driveway. In January 2022, he sent supporting photographic evidence to the Council.
In February 2022, after reviewing the photos and a telephone call with Mr X, the Council emailed to confirm it did not approve his driveway. As the grass had been laid on existing block paving, it did not qualify as soft landscaping. The soil was not in contact with the underlying earth so the area would not be sustainable for plant life.
Mr X asked to appeal the decision. The Head of Highways Management (HM) considered his request and responded that the outcome had not changed. There were two reasons for soft landscaping being a requirement for new vehicle crossings: drainage and supporting biodiversity. It was their view the lawn area on top of the existing hardstanding did not do this as built up rain would not drain away and contribute to flooding. It also negatively impacted the viability of wildlife as it was not in contact with the soil underneath.
Mr X was dissatisfied he had not been given the opportunity to set out the basis for an appeal before another decision had been made. He had installed a fully permeable system for the whole driveway and so drainage was not an issue. He explained why he did not believe biodiversity had been compromised in his lawn area.
A further response from the Head of HM disagreed with Mr X’s explanation, stating “the hardstanding presents a barrier impermeable to insects/earthworms etc and therefore the area will not be self-sustaining in the way it would be if it were connected to the underlying soil”. While it accepted the drainage requirements were met, the area did not support biodiversity. Mr X’s appeal was turned down. The Council would not proceed with the vehicle crossover until he altered his driveway to the requirements stated.
Mr X asked for the part of the policy that mentioned this particular point. The Council responded there was no specific requirements about barriers to insects for soft landscaping, but the aim and intent of the policy was clear which would be used as a guide when questions arose which were not covered. It was in keeping with what had been asked of other householders for years.
In May 2022, Mr X’s concerns were passed to the Council’s Complaints Team for an independent final review.
In July 2022, the Council’s complaint response said it reviewed Mr X’s layout plans and it was not clear that his intention had been to put the grass over a semi-permeable hardstanding. If the Council had been aware of this, it would have denied his application before the works had been completed. It had been Mr X’s decision to do it this way without consulting the Council first.
It acknowledged the policy had no defined wording in relation to the connection of the subsoil and soft landscaping, but it was satisfied the correct decision had been reached. It confirmed the policy was under review and would be changed to provide clear and more defined guidance going forward.
As a gesture of good will, the Council offered, after the required works had been done, to apply a reduction of £200 off the final invoice for the completion of the vehicle crossover.
In August 2022, Mr X complained to the Ombudsman. He highlighted he had constructed the front driveway in line with the policy documents and guidance, so should not have been rejected on something that was not mentioned within it. He was also dissatisfied with how the Council dealt with his appeal. In his view, it had not been undertaken by an independent person.
Analysis The Ombudsman is not an appeal body. It is not my role to say if I agree with the Council’s decision, I can only consider whether there was fault in the way it was reached.
In Mr X’s view, his appeal was not handled by someone independent. The Council acted appropriately as his request was escalated to the Head of HM, as per its policy. They were not involved in the initial decision making after his driveway had been inspected. I do not find fault.
After reviewing his application, the Council’s “Estimate and Guidance only” email said the requirement for soft landscaping was to “help promote biodiversity”. Whilst not specified in the policy, it was mentioned directly here at this point to Mr X.
In the guidance, ‘Soft landscaping’ was defined as “trees, plants and grassed areas” and does not go into further detail of what this would be composed of. In my view, it is reasonable for this to be widely understood as these being grown from an unobstructed layer of natural materials such as soil or earth.
Mr X added topsoil to establish a lawn area on top of the permeable hardstanding material for his driveway which differs from this. Mr X is of the view it was fulfilling the soft landscaping requirement. However, he could have checked with the Council to ensure it would approve the way he wanted to do it, before carrying out the works.
The Vehicle Crossover Policy refers to the requirement of soft landscaping in line with the “Council’s Green Policy”. Looking at the website there is not one specifically named, but there is the Council’s “response to the climate emergency”. This includes a Strategy 2021-2030 document which outlines what actions the Council is prioritising to tackle climate change. This includes a key focus area of “Nature and Green Space” and highlights the importance of biodiverse environments by enhancing green spaces.
In light of this, the Council holds the position that while biodiversity is not mentioned in its policy, the way Mr X had laid his driveway is not in the spirit of the Council’s strategy to improve the environment. Here, the Council reasonably set out under what criteria his application had been considered and explained why, in line with the Council’s application of its policy, it had been refused. It did not make an exception to its policy to ensure consistency in how it was applied.
In my view, £200 off the final invoice is a proportionate and sufficient remedy for the lack of clarity in the policy. In response to my draft decision, the Council evidenced it has now appropriately updated its Vehicle Crossover Policy on its website. This has clearer guidance about soft landscaping requirements.
I recognise Mr X is unhappy with the Council’s decision, however it is for the Council to decide the contents of its policies. Just because something is not specifically included does not necessarily mean it is inadequate. Policies cannot be expected to cover all possible scenarios but outline general understanding and guidance, to be applied consistently to individual circumstances and cases.
After reviewing the documents and the Council’s complaint response, I am satisfied it acknowledged Mr X’s views and reasonably explained how it reached its conclusion. I do not find fault with how the Council came to its decision.
Final decision
I do not find fault with the way the Council made its decision to not approve Mr X’s driveway for his dropped kerb application, and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman