Local Government

Summary

Mrs C made an application for a High Hedge Notice under the High Hedges (Scotland) Act 2013 Act. The council notified Mrs C and her neighbours of consideration of the high hedge application. Approximately a month later, a site inspection was carried out. Based on the inspection, the council reached the view that the trees in question did not qualify as a high hedge, and the council refused the application on this basis.

Mrs C complained that the council unreasonably failed to process the concerns she had about planting in her neighbour's garden. She raised particular concerns about the stage in the process at which the council considered the question of whether the trees amounted to a high hedge.

We obtained independent planning advice in relation to Mrs C's complaint. We found that the council had reached a particular decision about the process for a high hedge application, based on their legal advice. However, we considered that having reached that decision, the council should have been clear about the process they were following to the complainant (who expected the council to follow the guidance), and moreover, appropriately escalated their concerns about the guidance to the Scottish Government. Therefore, we upheld the complaint.

Recommendations

We recommended that the council:

• confirm they will raise their concerns about the guidance with the Scottish Government;
• confirm they will review their process for dealing with high hedge applications following engagement with the Scottish Government, including reviewing the handling and publication of the application, and the reimbursement of associated fees; and
• apologise for the failings identified in this investigation.

Summary

Mr C raised a number of concerns relating to the planning consent for the erection of houses on a site close to his home. In particular, he complained that the council had failed to take action against the developer to ensure improvements to the state of the pathway constructed by the developer and to the area of pipework discharging into the burn. Mr C also raised concerns that the pathway had been constructed in a different location to that on the approved plans and was unlit. The location of the pathway and the requirement that it be lit was detailed in a condition attached to the planning consent.

We took independent planning advice. We found that the action taken to amend the location of the path and to decide that the path should not be lit was likely to be contrary to sections 42 and/or 64 of the Town and Country Planning (Scotland) Act 1997. We were also concerned that the council had failed to keep Mr C updated on progress at the site and that they had failed to address his concerns about the location of the path. We therefore upheld Mr C's complaint.

Recommendations

We recommended that the council:

• apologise for their handling of this matter, in particular the failure to address the issue about the location and lighting of the path; and
• in light of the adviser's comments about the likely breach of sections 42 and/or 64 of the Town and Country Planning (Scotland) Act 1997, seek to regularise the situation, ensure compliance with the Act and report back on action taken.

Summary

Mr C complained about the council's handling of his complaint. He had initially contacted the council for information about the named person scheme for children and was unhappy with the response he received. He then wrote to the council to complain about this. He did not receive a response to this complaint and emailed the council again to complain that they had not followed their complaints handling procedure. The council sent him a response to his initial complaint on the same day. They said that this had been completed several weeks earlier, but had not been issued due to an administrative oversight. They also apologised for this.

Mr C then wrote to the council to complain about the response. He said that it appeared to him that the council had simply backdated a letter and then pretended it had not been sent due to an administrative oversight. In response to this, the council wrote to him and said that they had progressed his complaint to stage 2 of their complaints process. Mr C subsequently phoned the council and said that he wanted his complaint about the delay in responding to his original complaint to be dealt with as a new complaint. The council then wrote to Mr C stating that it was their view that the points raised would be best considered under stage 2 of their complaints handling procedure and as part of their consideration of the other issues he had raised.

We upheld Mr C's complaint due to the council's failure to send the original response to his complaint to him. We also found that the council should have been clearer to Mr C about how his subsequent complaints would be handled, although we found that it had been reasonable to deal with them under stage 2 of their complaints handling procedure. We were also satisfied that the council had apologised for these failings and had taken action to try to prevent similar problems from occurring.

Summary

Mr C complained regarding the council's handling of his reports of neighbour nuisance behaviour.

Mr C complained to the council about nuisance behaviour over a period of about a year. He said the council did not respond reasonably to his phone calls and emails, including to the council's helpline, and that they did not take reasonable action to address the behaviour. Mr C also said that the council did not respond reasonably to his complaint.

The council acknowledged that there were some issues with communication and complaints handling, and we therefore upheld these aspects of Mr C's complaint. However, they said they took reasonable action to address the nuisance behaviour.

Based on the information we received about the actions of the council and the circumstances of the case, we did not uphold Mr C's complaint that the council did not take reasonable action to address the nuisance behaviour.

Recommendations

We recommended that the council:

• feed back the findings of this investigation to the relevant staff; and
• provide an outline of the steps they will take to ensure messages via their helpline are handled better in the future.

Summary

Mr C complained about the council's handling of a planning application submitted by his neighbours. The council had granted planning permission, with an attached condition which stipulated that the recommendations in a tree report that had been produced for the neighbours were complied with. Some of the recommendations in the tree report related to trees that were on Mr C's property. As Mr C had refused his neighbours access to his trees, the planning condition could not be met. When Mr C's neighbours wrote to the council explaining this, the council stated that they considered the condition to have been fulfilled nevertheless.

We took independent planning advice. We found that it was unreasonable for the council to attach a planning condition that was unachievable to the planning application. We also found that rather than considering the condition to be fulfilled when they discovered it to be unachievable, the council should have asked the applicants to formally apply, under section 42 of the Town and Country Planning (Scotland) Act 1997, for the condition to be varied or for the development to proceed without complying with the terms of the condition.

We noted that prior to our investigation the council had implemented new training and guidelines to reduce the possibility of a similar failing occurring again, and that they had accepted that the condition should not have been attached in the form that it was. We therefore upheld Mr C's complaint.

Recommendations

We recommended that the council:

• apologise for the failings identified by this investigation; and
• draw the comments of the adviser regarding section 42 of the Act to the attention of relevant staff.

Summary

Mrs C lived adjacent to a site on which unauthorised development had taken place. Mrs C was unhappy that the development had caused her property to flood and complained to the council that they had failed to take appropriate enforcement action to address the flooding.

We found that the council had served three enforcement notices on the developer in relation to the site, and that each of these had been appealed. We also noted that the developer had submitted a further planning application to the council, which meant that all enforcement action was on hold pending the outcome of this application.

In response to our enquiries, the council advised that they considered they had taken appropriate steps to take enforcement action against the developer. We took independent planning advice. The adviser considered that the council had taken reasonable steps in the first instance to ensure that the enforcement notices were served on the correct parties. However, the adviser was critical with the approach taken by the council in relation to the enforcement notices and did not consider that this approach would have been able to achieve the council's aim of preventing flooding to Mrs C's property.

While the adviser was critical of this aspect of the council's actions, we did not consider that this failing had altered the outcome of the case. This was because it was evident that the developer submitted a new planning application, which meant that all enforcement action would have been on hold anyway. However, we found that, in the event that the developer's latest application is refused, the council should reconsider enforcement action with the benefit of hindsight over the detail required in preparing the enforcement notices. We made a recommendation in relation to this and decided on balance to uphold Mrs C's complaint.

Recommendations

We recommended that the council:

• feed back the adviser's comments to staff in the planning service.

Summary

Mr C was unhappy with the level of insulation in his new home and that his garden was being accessed by neighbours. He also made allegations of anti-social behaviour by his neighbours and was unhappy with the level of action taken by council staff to address this.

We concluded that the council had made a number of improvements to Mr C's property but that it was not suitable for underfloor heating, which he wished to have. We found evidence that the council had responded to the issues which they said were reported to them, although Mr C said that he had reported further issues. Overall we did not uphold Mr C's complaints.

Summary

Mr C raised a number of concerns about the condition of his property on taking up his tenancy. He maintained that the property had not been in a suitable standard to re-let and that the council had delayed in conducting repairs to bring the property up to a habitable standard and in removing rubbish.

During our investigation the council provided evidence that Mr C had inspected the property prior to accepting the tenancy, agreeing that the property was in a re-let standard. The council also provided details of the repairs carried out prior to Mr C's tenancy to bring it up to the re-let standard. In addition they provided details of the repairs reported by Mr C and while the council accepted that not all the repairs met the target date for completion, their position remained that the repairs did not render the property uninhabitable. They also said that the work required would not have prevented Mr C moving into the property. We did not uphold Mr C's complaint. However, the council had acknowledged and apologised for a delay in removing rubbish from the property and we therefore made a recommendation regarding this.

Recommendations

We recommended that the council:

• apologise to Mr C for the delay in completing the works to remove rubbish from the property.

Summary

Mr C complained that the council had unreasonably failed to include all objections to a planning application on their e-planning portal and that, although they acknowledged they failed to place his objection on the planning portal when considering his initial complaint, they told him it was on the planning portal when they responded to him at stage two of their complaints procedure. Mr C was unhappy with this inconsistency.

Mr C was also concerned that the council had ignored a planning condition restricting the start of development and had gone ahead with preparatory works which, Mr C believed, was contrary to the planning condition.

We reviewed the records and agreed with Mr C that his objection was not on the e-planning portal at the time the application was being considered. We upheld this element of Mr C's complaint.

We noted, however, that his objections were summarised in full in the planning officer's report to committee and they were, therefore, fully aware of his views. We also noted that the stage two response to his complaint was reasonable as Mr C's comments were on the online planning portal, but they were summarised in the report rather than being presented in full. We also noted that the condition Mr C considered was being breached by the council starting works had in fact been amended to allow works to go ahead at an earlier stage. For this reason, we did not uphold these aspects of Mr C's complaint.

Summary

Mr and Mrs C complained to us about the handling of a planning application for a wind turbine on land next to their property. They were concerned that the applicant had submitted inaccurate plans and that the application was registered under an inaccurate address. They were also concerned that the council had not fully assessed the impact of noise and that once the turbine was running, it created a noise nuisance.

We took independent advice from a planning adviser. The adviser noted the poor quality of the location plans provided with the application and the inaccurate address. They were, however, satisfied that the noise impact assessment and other information provided to the planners by the environmental health service and the energy company were reasonable.

During our investigation it became apparent that there was confusion over whether distances related to the curtilage of Mr and Mrs C's property or their house. This was not evident from the council's records, and created significant confusion as to whether the planning application had been appropriately handled. Mr and Mrs C also raised concerns that there had been a lack of enforcement action in relation to the mast that remained in place, despite conditions on its removal.

Based on the inaccuracies in plans and the lack of evidence of appropriate consideration of the distances involved, we upheld the complaint, and made recommendations to address the issues raised.

Recommendations

We recommended that the council:

• apologise to Mr and Mrs C for the failings identified in our investigation;
• share the findings of this investigation with those staff involved in validating planning applications, to ensure that the council's check-list for applications is applied consistently;
• consider whether the planning officer involved would benefit from further training in the application and use of planning conditions; and
• consider the use of the council's planning enforcement powers in relation to the current situation.