A recent report by the Local Ombudsman considered a local highway authority’s refusal to create a vehicle crossover from the highway over a grass verge to the complainant’s driveway. The crossover had been permitted by the planning inspector on appeal on the grounds that there would be no adverse effect in this particular case. Brent LBC, as planning authority, had rejected the original application because it believed that the loss of the grass verge would harm the visual amenities of the locality.

Although permission for the crossover was granted, such works must be carried out by the highway authority in accordance with the Highways Act 1980. However, Brent LBC refused to use its powers under the Highways Act. The decision follows Brent LBC’s Domestic Vehicle Footway Crossover Policy, which states that where the highway verge is greater than three metres in width or there is any other grassed highway amenity area, an application will be refused.

The Ombudsman found that the way in which the request to the highway authority to use its powers had been exercised amounted to maladministration, since council policy fettered its discretion to decide whether to exercise its powers and it had not communicated its reason for refusal properly. In light of the situation, Brent LBC has agreed to review its Crossover Policy, and it will be interesting to see whether the decision it has made will be set aside in light of this review.

The scenario has similarities to the case of R v Warwickshire CC Ex p. Powergen plc, which held that it was unreasonable for the highway authority to then effectively prevent development after planning permission had been granted.

Both the case and the decision serve as a reminder that planning and highways issues are subject to different rules and compliance with both systems is necessary.