Local Government

Summary

Mr C complained that the council had failed to fully reflect his concerns about a neighbouring planning application when they made a report to committee, in particular with regard to noise and loss of sunlight.

The council acknowledged that they had failed to fully reflect Mr C's concerns. They advised Mr C that the measurement of sunlight loss used for the application was appropriate but accepted that they should have communicated more clearly in their report about the loss of daylight. They also acknowledged that they did not properly reflect Mr C's concerns about the potential impact of noise.

We took independent advice from a planning adviser. The adviser found that while the council had failed to fully reflect the representations made by Mr C, these would have been available in full to committee members. They also found that the daylight test was in line with the council's guidance. As the council did not fully reflect Mr C's concerns about possible noise, we upheld Mr C's complaint.

Recommendations

We recommended that the council:

• remind planning officers of the importance of accurately reflecting public representations on material planning matters in the report of handling.

Summary

Mrs C complained to us regarding a planning application at a neighbouring site. In particular, she was concerned that the council had failed to re-notify neighbours following the submission of further information from the applicant. Mrs C also complained that the development management sub-committee had not been provided with a reasonable standard of information about ground levels.

We took independent advice from a planning adviser. They noted that when responding to Mrs C's complaints, the council had accepted that neighbours should have been notified of the additional information submitted and been given the opportunity to make further representations. The council also accepted that members of the development management sub-committee should have been made aware of the proposed site levels. We were advised that while reasonable action had been taken by the council to address these findings, further action should be taken by the council. We therefore made five recommendations.

Recommendations

We recommended that the council:

• consider the need for the planning service to accept direct responsibility for securing an acceptable solution in this case and report to us on any action taken;
• ensure that all options, including a specific proposal, are identified and considered and report back to us on the progress of a resolution;
• consider the need to ensure that where they are both planning authority and developer, it is essential to ensure that the standards of the planning service are met, and report back to us on any action taken;
• provide an update on the options developed for landscaping; and
• provide a copy of the practice note on site levels which has been prepared by the service delivery team.

Summary

Mrs C complained that the council had failed to take all appropriate steps in relation to her reports of anti-social behaviour. During our investigation we noted that the council's anti-social behaviour policy gives staff discretion to decide how to investigate complaints and to decide what action, if any, should be taken. By law, we are not able to question these decisions unless there is evidence of administrative error in reaching the decision. The council's policy indicated that mediation and noise monitoring should be considered and we saw evidence that this had happened. We were satisfied that the council had taken appropriate steps in line with their policy, and so we did not uphold this complaint.

Mrs C also complained that the council had not properly considered and assessed her claim for damage caused to her property. During our investigation we found that the insurers had been supplied with sufficient information by the council. We therefore did not uphold this complaint.

Summary

Mr C had previously paved his entire front garden to make a driveway and was given permission from the council to double the length of his dropped kerb to access this area. Mr C said he had difficulty accessing his drive and wished to further extend the dropped kerb. Mr C complained that the council unreasonably failed to appropriately assess his application to extend the drop kerb outside his home.

In considering Mr C's complaint, our role was to determine whether the council followed their normal process when dealing with Mr C's application. It was not our role to assess the site in question and determine whether or not Mr C's application should have been approved – that was the council's discretionary decision.

We saw no evidence that there was any visit made by a council officer to the site in question prior to giving his initial decision to refuse Mr C's application, although the council said a visit was made. When Mr C questioned the officer's decision it appeared that the council assessed Mr C's application in accordance with their normal process, with the council officer's manager assessing the site in question and setting out his professional opinion on why the application had been refused. On balance, we did not consider that the council unreasonably failed to appropriately assess Mr C's application.

However, the evidence showed that the council failed to keep adequate records on the case and deal with Mr C's concerns about their handling of his application and the actions of council staff appropriately. We made recommendations to address this.

Recommendations

We recommended that the council:

• feed back the failings identified in our decision to the staff involved;
• take steps to ensure that in future cases of this type, records of site visits and phone conversations regarding applications are kept and complainants are appropriately directed to their complaints procedure; and
• provide Mr C with a written apology for the failings identified.

Summary

Mr C complained about the way the council considered, and approved, a planning application to build a house close to his own. He said that the proposed structure as shown on the plans should have alerted the council to look more closely at the application and its potential to create noise in the surrounding area. The application was advertised but no comments were made about it by neighbours or the environmental health department. It was approved by the council.

The development as built did not comply with the planning permission granted and the developer was required to regularise the situation. The developer applied to the council for a non-material variation (where amendments proposed will not significantly change the scheme that was originally granted planning permission), which was approved around a year after the initial planning application had been approved. Mr C complained that this approach was unreasonable as was the council's action on his complaints of noise. The council, however, maintained that they dealt appropriately with both applications and with the information presented to them and, after investigation, they had found no evidence of a statutory noise nuisance.

We took independent planning advice and found that the council had assessed the applications made in terms of current legislation and guidance. We found that Mr C's complaints about noise had been reasonably investigated and the council had sought to limit any noise between the hours of 19:00 and 09:00. We also found that his complaint had been dealt with reasonably.

Summary

Mr and Mrs C's child made a disclosure to their class teacher about an incident they found upsetting within the family home. The class teacher spoke to the head teacher and the child was interviewed by the head teacher. The head teacher then contacted another member of the education department for advice and they suggested that social services be contacted. The head teacher said they were clear that they did not make a social services referral. However, the social work department contacted Mr C and arranged a meeting with him and Mrs C.

Mr C was unhappy about this and complained that the head teacher had not followed the correct Getting It Right For Every Child (GIRFEC) procedures. Mr C believed the head teacher should have spoken to him prior to contacting the social work department and they should have created a written assessment of the risk to the child. Mr C also complained the council's investigation into the matter had been rushed and unfair since they had refused to meet with him, despite meeting with the council staff involved.

We found there was no evidence that the head teacher had followed the appropriate GIRFEC procedures as set out in the council's guidance to staff. We found that the head teacher was unaware social services had recorded their contact with them as a referral. We considered it inappropriate that teachers did not know how the social work department recorded requests for advice. We found the council's investigation had not identified the failure to follow council guidance, nor had it explained to Mr and Mrs C why they had been contacted directly by the social work department. We considered the council's investigation into the complaint had not been conducted to an appropriate standard.

Recommendations

We recommended that the council:

• remind the staff at the school of the importance of recording information when following the council's GIRFEC guidance;
• review information sharing between the social work department and education staff, to ensure staff are aware when contact is recorded as a referral;
• review their investigation of the complaint to establish why issues around their failure to follow GIRFEC were not addressed in either response;
• review the investigation to establish why no explanation was provided for the recorded social work referral;
• provide evidence that the learning points identified in the response to us regarding meeting with complainants have been actioned; and
• apologise for the failings we identified.

Summary

Mr C complained on behalf of his daughter (Miss A) about the transfer of school work when she moved between two schools.

We found that while the first school had updated Miss A's exam results promptly after she withdrew from the school, they did not properly deal with requests from Miss A and staff from the second school for evidence of those marks in the form of coursework.

We also found that the council had not identified this poor communication in their complaint investigation. We noted that they appeared to have contacted only the first school during their investigation and not the second school. We found this to be unreasonable. We therefore upheld Mr C's complaints and made two recommendations.

Recommendations

We recommended that the council:

• share the outcome of this complaint with relevant staff; and
• apologise to Mr C for the failure to conduct an effective investigation into his concerns and to his daughter for the distress caused to her by the inadequate communication between the schools.

Summary

Mr C complained to the council about a local bus company's use of the street outside his house for driver changeovers. Various options that would help resolve this problem had been considered but none had been put in place. Separately to this, there were plans to upgrade a nearby junction. This project included measures to accommodate driver changeovers and the council anticipated these would resolve Mr C's problems with driver changeovers.

Following a local consultation, the council began formal proceedings to carry out the upgrade, including a statutory consultation. Mr C complained that the length of time taken by these proceedings was unreasonable. He also complained that the council was not enforcing regulations on buses stopping in a restricted area near his home.

We acknowledged that the statutory process and the way the upgrade project was funded affected the timescale and that this was outside the council's control. However, we found that the council had introduced some avoidable delays that extended the timescale. We also found that the council was aware of drivers being asked by the bus company to stop in the restricted area. We therefore upheld Mr C's complaints.

Recommendations

We recommended that the council:

• apologise to Mr C for the avoidable delay in the process;
• provide Mr C with an update and schedule for the works at the junction near his home; and
• consider whether enforcement of relevant traffic-related legislation is required.

Summary

Mrs C complained that the council erected new equipment in an established play park next to her home. The new equipment is proving significantly more successful than the previous equipment and is being used by many more people. Mrs C is unhappy with the noise from the park area and has suffered from some anti-social behaviour from park users. She complained to us that the council failed to carry out an appropriate public consultation before installing the equipment.

In their response to the complaint the council had told Mrs C that there was no duty for them to carry out a substantial consultation for the installation of this type of equipment in an established play park, although they noted that they had consulted with local schools. They said that as they were replacing old play equipment with new, there was also no need for the submission of a planning application for the majority of the equipment. However, they acknowledged that one piece of equipment did exceed the height limits for consideration as permitted development. As a result, they considered whether this specific piece of equipment was of sufficient detriment, in itself, to require the submission of a planning application. They decided that the submission of a planning application was not required as the equipment only just exceeded the height limits, it could not be reduced in height and they deemed that the additional height, in itself, would not be detrimental to Mrs C's amenity.

We were satisfied that there was no additional duty on the council to consult. We were also satisfied that they had correctly identified an individual item of equipment as being one which would not normally meet the criteria for permitted development and that they had assessed whether the additional height of the single item of equipment would have an impact on Mrs C's amenity. As they demonstrated that they had considered whether a planning application should be requested, and as no further public consultation was required, we did not uphold this complaint.

Summary

Mr C complained that the council had failed to take reasonable action to protect him and other residents from what he said were excessive levels of noise from a scrap processing yard next to his home. Mr C considered the noise levels were a statutory nuisance and the council had failed to take appropriate action to address this.

We obtained independent advice from an environmental health adviser. The complaints concerning noise levels had been long-standing and ongoing. We accepted that the council had carried out noise monitoring as a result of complaints received about the level of noise coming from the scrap yard since 2011. We were satisfied that the council had determined that a statutory noise nuisance was established firstly in 2011, and then again in 2012 and 2013.

However, the council did not take enforcement action and serve an abatement notice until late 2013. The abatement notice was then suspended. We considered the council could and should have taken earlier action. We were critical of the council's failure to do so and of the significant delay in serving the abatement notice from the time when nuisance was first established in 2011.

The council said that since the abatement notice was suspended they have continued to assess complaints received and have not found there to be any situation which warranted further enforcement action. However, we found it concerning that since the suspension a significant number of complaints about noise have been made. Although the council have said the noise levels were found to be excessive on only two of these occasions, it was unclear why the council have not taken further enforcement action. We considered the council failed to act reasonably in respect of noise nuisance that Mr C experienced at his home and made a number of recommendations to address this.

Mr C also complained about the council's handling of concerns he raised about alleged soil contamination in his garden and at a nearby play park, which he considered had originated from the operations carried out at the scrap yard. We found that the council had carried out sampling which included taking samples of soil and fruit from Mr C's garden. The advice we received from the adviser was that the council had carried out appropriate monitoring and sampling and in respect of the most recent sampling results had taken appropriate advice from public health authorities about these results and in evaluating the risk to human health. These results had found there was not a significant risk to human health and that further investigation was not required. We therefore did not uphold this part of his complaint.

Recommendations

We recommended that the council:

• apologise for their failure to act reasonably and earlier in respect of noise nuisance Mr C experienced at his home;
• undertake a review of their policies and procedures in relation to noise nuisance, having due regard to the current guidance and best practice, and to ensure that staff have the requisite competencies in assessing acoustics and noise control;
• ensure our investigation findings are brought to the attention of the relevant staff involved; and
• provide evidence of what action they are taking to continue to monitor noise levels from the scrap yard.