Local Government

Summary

Mr C, who is an MSP, complained on behalf of his constituent (Mrs A) that the council were not doing enough to prevent water seeping into her garden and pooling on her path where it met the public pavement. He explained that this caused problems in winter when the water froze, and increased Mrs A's risk of falling. He said that the water was coming from council land, so they should put in additional drains to minimise the seepage.

In responding to the complaint, the council inspected the drains from the property and found no problems. They also inspected the council-owned area of grass beside Mrs A's home and installed a soakaway (a gravel-filled channel or pit that helps manage surface water), although they did not think that very much water was coming into her property from there. The council said they thought that the problem she was experiencing was due to groundwater (water found underground in the cracks and spaces in soil, sand and rock), and pointed out that property owners are responsible for protecting their own property from flooding and for draining their land. They provided advice on what Mrs A could do to improve drainage, and also resurfaced the pavement to reduce the risk of pooling at the entrance to the path. They said, however, that the remaining pooling related to paving slabs on the path itself, and was Mrs A's responsibility.

We checked the council's statutory responsibilities under roads and flooding legislation. Our investigation found that this makes it clear that the home owner is responsible for water collecting in their own property. Having considered the council's responsibilities, and the actions they had already taken to try and improve the situation for Mrs A, we found no evidence of administrative failure in how they handled this.

Summary

Mr C complained that the council had not taken appropriate action to address a number of concerns he had about a neighbouring development. He said that the boundary fence was unsafe because a large number of nails protruded from it into his property and that there were excavations beside the fence that the developer had not completely filled in. He also complained that the developer failed to properly connect drains to the drainage system of the neighbouring private road.

The council had explained to Mr C that their planning department were satisfied that the fence complied with the approved plans and that the finish of the fence was a private legal matter. They also said that the drainage problem was a matter between residents and the developer, as the road was private.

We fully considered the information from the council and Mr C, and agreed that the issues Mr C raised were essentially private legal matters. We were satisfied that the council's planning and building control team had taken appropriate steps to try and address his concerns, and as we found no evidence of administrative failure in the way the council dealt with this, we did not uphold the complaint.

Summary

Mrs C raised a number of issues about the council's handling of a planning application to build a temporary building in the school next door. She said that they had not provided accurate information about the application, and that although she had been told that the structure would not be higher than her boundary wall, it turned out to be higher than it when built. She also said that the structure affected her privacy and the amount of daylight she received, and that the council had not addressed her concerns about what was being built, or about damage to the boundary wall and the impact on her property. Finally Mrs C said that the council had failed to address her concern that the local councillor was given conflicting information about an offer of compensation.

After taking advice from one of our planning advisers, we did not uphold Mrs C's complaints. Our investigation found no evidence that the council failed to follow the appropriate process to let neighbours know about the application, and there was no clear evidence about what they told Mrs C about the height of the structure relative to the boundary wall. We were also satisfied that the council had addressed her concerns about what was being built on site, although there was some uncertainty about whether the building had been built in accordance with the plans as far as the relative height to the wall was concerned. We were also satisfied that they had responded to Mrs C's concerns about the impact of the structure on her property, and about the boundary wall. The council had explained that the wall had been inspected. We found no evidence of conflicting information in relation to compensation.

Recommendations

We recommended that the council:

• draw this case to the attention of the officers involved, for them to consider whether any lessons can be learnt from the handling of this case.

Summary

Mr C and Mr D own a listed country house hotel with substantial grounds. They had obtained conditional planning consent to build holiday cottages in the grounds. One condition said that the cottages should only be used for seasonal lets, but contained an ambiguous sentence. Mr C and Mr D interpreted this as implying that they could write and ask the planning authority to set aside that condition. When they then decided to sell one of the cottages, they engaged in an extensive pre-application discussion with the council. The council told them that they would require a planning application, which was submitted. Council officers prepared a report indicating that they would be prepared to recommend approval of the proposal, subject to completion of a section 75 agreement (a legal agreement that covers financial contributions to meet the services and infrastructure needs of the local community associated with the new development). A draft agreement was provided and agreed in principle by Mr C and Mr D. However, the council did not issue their decision within the required time period, and Mr C and Mr D submitted a notice of review to the local review body. The review body met, but while awaiting their decision Mr C and Mr D appealed to Scottish Ministers on grounds of non-determination of the original application. The local review board issued a notice of intention some days later, but this was negated by the appeal.

Mr C and Mr D complained to us about the council's handling of this, including how they described the application. They also complained that the council failed to assess the application against relevant planning policies, that they unreasonably required the section 75 agreement without considering other options and that the local review body did not follow due process. Mr C and Mr D also said that the council failed to provide a reasonable response to their complaints. In the light of independent advice from one of our planning advisers, we did not uphold the first four complaints as we did not find evidence of maladministration or service failure, although we did make one recommendation. In terms of the complaints handling, we found that although the council's response to their complaint was concise, it was not unreasonable. Our decision took into account that the issues had by that time been rehearsed with the planning officer, at the local review body and in the appeal to Scottish Ministers against non-determination by the local review body.

Recommendations

We recommended that the council:

• review their procedures for recording Section 75 agreements to ensure that the wording reflects Scottish Government advice.

Summary

Mr C complained that the council had unreasonably failed to maintain and repair a section of road near his home in line with their obligations. He also said that when he reported pot holes to the council, they failed to carry out repairs within the required timescales.

The council said that they met their responsibilities in terms of roads inspection and maintenance and that when Mr C reported problems to them they took action to repair them within an appropriate timescale.

We obtained the council's records which showed that they had inspected the road, as required by their code of practice, and where defects were identified, they had carried out repairs. They also provided records showing that they had responded to Mr C's reports of pot holes and had carried out necessary repairs the following day. As the council had met their responsibilities in terms of the inspection and repairs, we did not uphold Mr C's complaint.

Summary

The council put up a fence dividing the area that Mr C and his neighbours used as a driveway, causing them difficulty in accessing the area with vehicles. Mr C complained to the council about this and then, when he was dissatisfied with their responses, he complained to us.

We found inconsistencies in the council's responses, and that they did not respond at all to one of his letters, and so we upheld his complaint.

Recommendations

We recommended that the council:

• apologise to Mr C for their failure to reasonably respond to his complaints; and
• reconsider their response to Mr C's complaints and provide him with a clear and consistent response.

Summary

Mr C moved into a property as part of a house swap. He said that it was not habitable because of damp, condensation and mould, and that this affected his and his family’s health. He told us that the council delayed in sorting out the problems and in responding to his complaints, and did not decant (temporarily move) them into another property. Mr C also complained that when he sent an insurance claim to the council for items damaged by damp and mould, the council and/or their insurers did not take full account of his evidence when they assessed the damage. He eventually moved his family to a privately rented property.

Our investigation found that, although no solution was found while the family were in the property, the council did not delay in trying to address the problems, so we did not uphold that complaint. We did uphold the complaint about decanting. The council told us that they considered moving the family, but decided it was not necessary because the type of work needed did not require this. They could not, however, show us evidence to support their decision.

Although we cannot look at the amount of an insurance award, we can look at the decision-making process that led to it. After a considerable amount of discussion with the council, in which both we and they took legal advice, they provided us with evidence about that process in relation to Mr C's claim. Having reviewed this, we took the view that the insurers had given the council all the relevant information. We did, however, find some failings and delays in responding to Mr C's complaints.

Recommendations

We recommended that the council:

• consider reviewing and adapting the documentation on requests for major repairs to allow for discussions and/or consideration of decanting to be recorded; and
• issue a written apology for the failings identified during our investigation.

Summary

Mrs C said that a social work services complaints review panel had made several recommendations setting out action to be taken by social work services concerning her son and grandchild. She complained that the council failed to implement three of the recommendations.

The evidence supplied by the council showed that they had in fact implemented the disputed recommendations, but we had concerns that they were unable to provide documentary evidence to support all of their actions. When we raised these concerns, the council told us that they had recently formalised how they keep track of actions to be taken following recommendations made at a panel, and from 1 April 2014 introduced plans for improved recording of actions and learning. As they had already put in place an appropriate process, we did not make any formal recommendation on this. We were also concerned that the council did not currently update complainants about actions taken following panel recommendations, unless they specifically asked for this. During our contact with them about the case, the council said they may consider in future notifying complainants, either verbally or in writing, when panel recommendations have been carried out. We told them that we would welcome this change.

Summary

Mrs C complained that the council acted unreasonably in granting temporary planning permission for a mast to be erected on the Isle of Orsay (an uninhabited island). The mast was intended to collect meteorological information essential for the development of an offshore wind farm near Islay. The wind farm had been designated a project of national importance by the Scottish Government, and the planning application for it was to be considered by the government, rather than the council.

Mrs C said that the council had not taken account of Orsay's special protected area (SPA) status under European law, and they had not given sufficient weight to objectors' requests for an environmental impact assessment. Mrs C also felt the council's decision was inconsistent with a previous planning decision on a proposal to site the mast nearby. She said that the council's actions contravened the Aarhus Convention (a European convention establishing a number of rights of the public with regard to the environment) in relation to public participation and environmental information.

We took independent advice from our planning adviser, who said that the mast could not be considered to have the same impact as a wind turbine because of the difference in size, and that the temporary nature of the permission was an important consideration. Orsay's SPA designation had been addressed in Scottish National Heritage (SNH)'s response to the council's planning consultation and the council acted reasonably in relying on this in their decision. He also said that the council were entitled to decide how much weight to give to information from objectors. They had to bear in mind that a decision giving too much weight to objections from members of the public, as opposed to advice received from SNH as a specialist body, would have been open to challenge. The adviser said the application for the alternative site was withdrawn before the council could consider it, so no precedent was set, and in their decision the council could give no weight to the applicant's decision to withdraw. The adviser went on to say that he did not consider that the principles of the Aarhus Convention had been breached and that the council's approach to the hearing had reflected general good practice.

Overall, our investigation found that the council acted reasonably and in accordance with general good practice in determining the planning application. The decision they reached was one that they were entitled to make and they acted within their discretionary powers when considering submissions from objectors to the application.

Summary

When Mr C moved into a new property, he discovered that the roof space was not adequately insulated. He contacted the developer and the council. Following discussion with the developer, he contacted the council's building standards department for help and asked for a copy of an updated drawing for the roof space. It took seven months for the council to provide the drawing. Mr C was then unhappy with the handling of his complaint about this, and that an email to the chief executive had not been responded to.

Having carefully considered his complaint and documentation, we considered that there was an unreasonable delay in providing Mr C with a copy of the drawing. The council had already agreed to apologise to Mr C for this. We also found that they had not made sure that Mr C was aware of their role and limitations in helping him try to resolve issues with the developer. We found that the complaints handling had been poor. The council had not followed their published complaints procedure on a number of occasions during the handling of his complaint, and had not considered whether the particular circumstances meant that they should have escalated it straight to the investigation stage of their procedure. The council acknowledged that Mr C's email to the chief executive was not responded to in a timely manner.

Recommendations

We recommended that the council:

• feed back to building standards staff that, should a similar situation occur again in future, they should take steps to ensure that members of the public are made aware of the council's role and limitations and manage expectations appropriately;
• in light of the failings identified by Mr C's complaint, undertake a full review into their handling of it to identify what practices, processes or procedures they can put in place to prevent similar failings happening again;
• apologise to Mr C for the failings identified in the handling of his complaint; and
• apologise to Mr C for the delay in responding to his email.