Local Government

Summary

Mr and Miss C complained that a neighbour had constructed an entranceway that extended along the road verge to the entrance of a field that Mr and Miss C rent. They complained that this in effect increased the level of the verge, making it difficult to access the field with their vehicle and trailer. They also complained that the access road had resulted in a ditch being filled in and a field drain broken. Mr and Miss C felt that the council should not have allowed that part of the drive to be built and should take action to restore their access and fix the drains and ditch. They were also unhappy with the way the council dealt with their complaint.

The council's planning and roads teams reviewed the case and explained that the area in question was not part of the original planning consent. They explained that an area such as this would not require planning consent and, providing it did not cause flooding to the public road, would not be a concern for the roads department. As a result of this, the council explained that they could not take action against the neighbouring developer and that this was, essentially, a private dispute between neighbours. Mr and Miss C remained dissatisfied with this response.

We considered their concerns and reviewed the planning application details and roads legislation. We found no evidence to suggest that the council were in any way responsible for the changes to the verge. The site fell outwith the boundary area under which the planning permission was granted and, in itself, the area of tarmac concerned would not require planning permission. We also noted that the roads department would only take action where there was flooding to the public road. The council had inspected the site a number of times because of the complaint, and were satisfied that they could take no action to alter the access way. As the council were not responsible for the problems, and as they were unable to take enforcement action to alter the access to the field, we did not uphold these elements of the complaint.

However, we found that the council's initial handling of the complaint was very poor, as they failed to respond to correspondence and phone calls. In particular, the roads department failed to return numerous calls from Miss C. For this reason, and because the council allowed the correspondence to continue for almost two years, despite being clear that this was a private legal matter between neighbours, we upheld this element of the complaint. As, however, the council had already taken significant action to introduce a new computer system and complaints procedure we did not make any recommendations.

Summary

In January 2009, an inquiry reporter decided to uphold a council decision to refuse planning permission to build houses in a long established area of open space behind the homes of Mr and Mrs C and their neighbours. When, in March 2012, the council granted planning consent for residential development of the same site, Mr and Mrs C and their neighbours were unhappy and made nine detailed complaints to the council and then to us. Seven of these related to the report of handling of the later application that council officers presented to members of the council committee.

We upheld three of the seven complaints about the report of handling - in relation to failure to refer to a planning advice note and to fully address and consider the implications of the reporter’s dismissal of the appeal on the first application. The other two complaints, which we also upheld, related to a lack of proper evaluation of the loss of open space that implementation of the proposals would entail and unreasonable delay by the council in investigating the complaints.

Recommendations

We recommended that the council:

• consider and set out a timetable for the preparation of an open space audit and strategy to comply with Scottish Planning Policy on Open Space and Physical Activity; and
• consider the preparation of internal guidance that reports of handling should assess all relevant aspects of planning history, particularly where a previous decision might be seen to be contradicted by the proposed recommendation; and clearly distinguish between the analysis of the provisions of the development plan in force and those of any emerging plans as material considerations.

Summary

Mr C complained that the council unreasonably refused to carry out work to his bathroom wall despite previously agreeing to do so. The council had told him that the offer of work was being withdrawn because he had made an abusive phone call to a member of staff. Mr C complained that the council had never told him what the abuse consisted of, or when it was meant to have taken place.

We upheld Mr C's complaint, as we found that the council did not conduct an adequate investigation into his concerns, and their responses had been confused and at times contradictory. There was also confusion about the possible involvement of a councillor. Council officers were unclear about the policies and procedures to be used when dealing with difficult phone calls, and we found that the withdrawal of the offer of the work was neither proportionate nor reasonable. We also found that the council's record-keeping was inadequate and that there was no proper audit trail of the decision-making process.

Recommendations

We recommended that the council:

• provide Mr C with a written apology for the failings identified by our investigation;
• complete the outstanding work in Mr C's bathroom;
• provide evidence that they have put in place written guidance on managing unacceptable behaviour and drawn this to the attention of all council staff; and
• review their policies for recording contact between staff and councillors to ensure that a formal record is kept.

Summary

Mr C complained that the council had not given clear reasons for refusing his application for a community care grant from the Scottish Welfare Fund. There is guidance published by the Scottish Government which sets out the process for councils to follow.

Our investigation found that the council had not clearly explained to Mr C why they considered his application to be ineligible (which was because he was not in receipt of a qualifying benefit and had not met the qualifying conditions).

Even when asked to provide a clearer explanation the council failed to tell Mr C what information they had taken into account or how they had used the government guidance in arriving at a decision. Nor had they told him whether his application was considered to be high, medium or low priority as they should have.

We upheld Mr C's complaint and found some of the conditions being applied were too narrow compared to Scottish Government guidance - in particular, the definition of ‘a family.’ We did not make any recommendations, however, as the council had already made improvements to their handling of applications, including their definitions of qualifying categories. The council also accepted that the explanations given could have been better and have taken steps to improve the decision letters sent to applicants.

Summary

Mr C complained that the council failed to consult with the local community when they imposed a planning obligation on a developer. He said that the community should be consulted and have a say on where the resources agreed as part of this planning obligation should be allocated.

The council had explained to Mr C that planning obligations are imposed on developers to mitigate against the direct impact a development may have on an area. This could include the impact on infrastructure, local facilities or the environment, and in this case the planning obligation was to mitigate against environmental impact. They also explained that planning law and the relevant Scottish Government planning circular did not require consultation with the community when setting planning obligations.

We considered the information submitted in support of the complaint and the council's response, and reviewed the relevant legislation and planning circulars. Having done so, we did not uphold Mr C's complaint, as our investigation found that what the council had said was correct, and that there was no duty on them to consult the community in this respect.

Summary

Mr C complained about the way the council handled an increase in his daughter's home care charges. He said that the council had unreasonably applied a lower earnings threshold than the one approved by council members. Mr C was unhappy that the council had declined to issue a refund as recommended by a complaints review committee (CRC). We found that the council did, in exceptional circumstances, have the discretion to reject recommendations made by a CRC, and concluded that their decision was one that they were entitled to make in the circumstances.

Summary

Mr C complained about the way in which the council handled his complaint about a planning matter. We found that the council failed to deal with the subject of his complaint at the earlier stages of the complaints procedure. When they did finally respond to the matter he was complaining about, they acknowledged some, but not all, of their failings and apologised to Mr C for them. However, in later correspondence, the council appeared to change their position and said that they regarded the first stage response to the complaint as their final response on the matter.

We concluded that the council’s handling of this matter was confusing and of poor quality, and upheld Mr C’s complaint.

Recommendations

We recommended that the council:

• apologise to Mr C for the poor handling of his complaint, and for not acknowledging their failings in dealing with it;
• feed back to the planning department that they should acknowledge incoming emails, and clearly explain why they might not provide a response to the substance of an email; and
• review how this matter has been dealt with, in order to learn lessons in identifying the substance of a complaint and providing appropriate explanations and apologies in complaint responses at the earliest opportunity.

Summary

Mr C complained to us that the council were failing to ensure that he had reasonable vehicular access to his home. He said he could not access it on a number of occasions because he could not pass parked cars. He complained that the council had carried out works that had narrowed the road, and allowed neighbours to construct a drive that effectively reduced the available parking space. Finally, he was unhappy that the council had refused his request to introduce parking restrictions to ensure he had clear access.

The council explained that they had built a fence beside the road for safety reasons and that after Mr C told them about the problems he was having, they moved the fence as much as they could to improve the road width. They inspected the site, and were of the view that Mr C could access his drive safely if neighbours parked considerately. They also inspected the driveway and said they did not consider it a safety hazard and that it did not restrict access along the road. They explained that if parked cars blocked access, Mr C should contact the police. The council also pointed out that introducing parking restrictions would involve making a traffic order. This would require a consultation with neighbours who might not be supportive, and the council thought that progressing an order at this time would not be appropriate.

We considered the evidence provided by both parties and reviewed the council's statutory responsibilities in terms of roads maintenance and parking. We noted that they had carried out works to improve safety and, when advised of the impact this had on access, had taken further action to move the fence and widen the access. We found that they had investigated all Mr C's concerns and had acted to try and improve access. We also noted that they had explained that they had no means of restricting parking other through a traffic order, which they considered inappropriate. We found no evidence to show that they failed to act appropriately on Mr C's concerns.

Summary

The council gave planning approval to Mrs C's neighbour to demolish a building and build a garage and boundary walls. Mrs C then complained that the council failed to protect her access to her property and a general right of way, and failed to take full consideration of the flood risk and consult with the Scottish Environment Protection Agency (SEPA). She also complained that they had earlier failed to take action when her neighbour had demolished the building (which Mrs C claimed to own) without planning permission.

After taking independent advice from one or our planning advisers, we found that the council had acted reasonably. Mrs C had claimed that the walls effectively left her property land-locked. She also complained that they blocked a right of way used by pedestrians to access the foreshore. The council had approved the development based on the fact that there were many other lanes in the area with access to the foreshore, including one on the opposite side of Mrs C's property. They also said there was no recorded right of way on the lane, and they did not consider that it would be reasonable to establish one. Our view was that this was reasonable and proportionate.

The council accepted that there is some sea flooding of the foreshore and nearby streets and lanes each year. However, the properties involved in the application had not been flooded and were outside the flood-risk area on SEPA's maps. The council considered whether the development would cause a material increase in properties at risk of flooding - this is the trigger for mandatory consultation with SEPA on a planning application. They asked their own flood prevention unit for advice, who said that as the development did not cause a material increase, consultation with SEPA was not required. This was confirmed by SEPA's senior planning adviser. After some adjustments to the plans to allow sea water to escape in the event of flooding, the application was approved. Our adviser considered this was reasonable and that consultation with SEPA was not required.

The demolished building was on the neighbour's land. We were unable to establish ownership but, as the council had treated Mrs C as the owner, we continued our investigation on that basis. We found that the building was demolished without planning permission but that retrospective permission had been granted. The neighbour had submitted a certificate stating that he owned the land, and the council said that the onus was then on him to ensure there were no legal or other barriers to prevent the works starting once planning permission was granted. Our adviser agreed, and said that this was a private legal matter between Mrs C and her neighbour and there was no requirement under planning legislation for the council to take action.

Summary

Mr C complained to us on behalf of his elderly parents, who he said found it expensive to heat their home because of old draughty windows. Two windows had been replaced but the council had decided not to replace the remaining windows, although they had resealed some. Mr C said this had not made any appreciable difference. He said that a clerk of works from the council had said that the windows would last another eight years and if they were replaced, everyone else would want this. Mr C believed that the council had replaced windows in newer houses than that of his parents, and felt that the criterion for replacement should be based on the condition of the windows, not their age.

When we investigated this, the council told us that their programme of replacement was based on need. They told us also that there had been a robust assessment into the condition of the windows in Mr C’s parents’ house. However, there was no record of the assessment, as reports were usually provided verbally and dealt with at the time. We considered that it was unreasonable not to hold records of assessments or their outcome. We upheld Mr C's complaint about this, and made recommendations. We did not uphold his complaint about newer houses having windows replaced as the council clarified that it is not age but condition which dictates this decision, but we made a related recommendation.

Recommendations

We recommended that the council:

• undertake a further inspection within 10 working days of the issue of our decision and ensure a report is produced;
• review their current procedures where a request for repair or replacement works is requested, and put in place improvements to record keeping, especially where assessment has found that limited or no works are required; and
• review their decision not to replace the windows in Mr C's parents' house, based on a fresh reassessment of the windows, and notify Mr C of the outcome of the reassessment and whether this has changed the decision about replacement.