Local Government

Summary

Mr C complained that the council failed to take steps to stop his neighbour from building a shed and decking area which did not have planning permission. When the neighbour then applied retrospectively for permission, Mr C complained that the council accepted poor quality drawings and plans relating to the proposal, that the officer who granted consent failed to carry out a site visit and failed to check the dimensions of the building after it was built. Mr C was also concerned that the building exceeded the permissible dimensions.

Having considered the background information, we found that when Mr C reported to the council that his neighbour was building in his garden, the council promptly carried out a site visit and, having reviewed the construction of a large garden shed, advised the neighbour that planning permission would be required. We noted that by requiring the neighbour to make a retrospective planning application, the council were giving them the opportunity to have the merits of the development considered by the planning department. We found this entirely appropriate. To seek to have the development removed, when it was possible that planning permission would be obtainable, would not have been a reasonable course of action for the council to have taken in this case.

We did not uphold Mr C's complaints. Whilst the drawings which were submitted for the garden shed were not of a quality which would be produced by an architect, we found that they were sufficient for the type of development proposed, and complied with the relevant regulations. The council also provided evidence that they had visited the site and measured the shed. They were satisfied from this visit that the building was constructed in accordance with the approved plans. Although the officer who granted planning consent had not visited the site, a report of the development was produced by a fellow officer who had. Finally, we found no evidence to suggest that the shed exceeded any size restrictions.

Summary

Mr C complained that, following the completion of a new school behind his property, his garden was experiencing flooding during heavy rain. Mr C was unhappy with the council's handling of his complaints about this and said that they had unreasonably failed to resolve the problem. He was also unhappy with the council's handling of his representations.

During our investigation we were satisfied that the council had provided evidence that they had taken action in an effort to resolve the problems. While Mr C remained dissatisfied, they were satisfied there was no other work they could reasonably carry out. They had said that maintenance work would be carried out to ensure the drainage system continued to function as designed. We, therefore, did not uphold this complaint. We did uphold his complaint about how they had handled his representations, as we found evidence that the council had failed to deal with Mr C's complaint in line with their complaints procedure.

Recommendations

We recommended that the council:

• apologise for their overall handling of the complaint.

Summary

Mr C's partner submitted a claim to the council for damage to their car. After a number of messages from Mr C about delay in dealing with this, the council refused the claim, saying that there was no fault or negligence attributable to them. Mr C disputed this on a number of occasions and asked for the decision to be reviewed. He then complained about the way the council were handling matters. The council upheld part of his complaint but said that the complaints procedure did not allow for a review of the decision on his claim and that he should seek legal advice if he remained unhappy. Mr C wrote to the council again saying that their response had been unreasonable, in particular with relation to his claim, but the council repeated their decision.

Mr C continued to write to the council, and they wrote again, saying that while their decision on the insurance claim was one for the courts, they recognised that they had not been as helpful as they could have been and that their explanations could have been clearer. As a consequence, they said, the claims process was being reviewed.

Mr C complained to us that the council failed to operate and comply with reasonable procedures concerning his claim and because of this they did not deal properly with his complaint. We upheld Mr C's complaint as our investigation confirmed that there were defects in the council's internal claims process and that the council failed to follow their own stated procedures when dealing with his complaint.

Recommendations

We recommended that the council:

• apologise for their failing in this matter; and
• ensure that staff in the claims department are fully aware of the policies with regard to complaints handling and to requests for liability reviews.

Summary

Miss C is a council tenant. She complained that the council failed to acknowledge that there was a noise nuisance from her nextdoor neighbour’s house and to take reasonable steps to resolve the matter.

Our investigation found evidence that the council had investigated Miss C’s complaint. Visits had been carried out and no nuisance was identified. The view taken was that any noise came from normal household activities. It was clear that the council had not found a problem and this was why no further action had been taken. We did not, therefore, uphold the complaint but because it had been almost a year since the last visit by the council, and Miss C told us that she was continuing to experience a problem, we decided that it was reasonable to make a recommendation about this.

Recommendations

We recommended that the council:

• arrange a visit to Miss C's home to investigate her complaint about noise nuisance.

Summary

Mr C complained that the council used incorrect roads design guidance when assessing his planning application. He believed they used local guidance rather than the correct national planning policy when considering the application. In addition, he complained that the council used unrepresentative accident statistics when assessing the safety of his proposed access way. The council also cited a high average traffic speed as a concern to be considered when assessing the application, and Mr C believed this to be unfair. He said that if drivers were breaking the speed limit, the council should have taken steps to reduce this offence through enforcement and traffic management. Finally, he complained that they failed to provide a reasonable response to his complaint.

We did not uphold Mr C's complaints. We found that the national policy he quoted was the correct one for assessing this issue. However, the policy allows councils flexibility and acknowledges the importance of local design guidance, which may also be used. We found no evidence to show that the council had used unreasonable accident statistics - those they used were obtained from the police. In addition, Mr C's agent had also provided his own road safety figures to the planning review committee for consideration. Finally we found that the council did not accept that the road was unsafe, rather they were of the view that the proposed access could not safely be introduced at that site. We highlighted to Mr C that the enforcement of speed limits was a matter for the police. We found no evidence of administrative failure in the way the council considered these issues, and that they had explained their reasons for the way they did so in responding to the complaint.

Summary

Ms C complained that the council unreasonably charged her for a visit to her home for a gas maintenance check, which was legally due. While she accepted that the contractor was initially unable to access her property, she said that she heard nothing more until the council sent her what they said was their third letter. The maintenance check was then carried out but the council applied an administrative fee, as explained in their third letter.

Our investigation found that the council are required by law to carry out an annual gas safety inspection and they follow a notification process. This ends in them forcing access to a property if a tenant does not respond. The council said that they had written to Ms C three times to arrange the inspection, and their contractor had left two cards at Ms C’s home on their unsuccessful attempts to carry out the check. The council provided copies of the correspondence and postcards and they all had the correct address details. As they had followed their policy we did not uphold Ms C's complaint, as the council were entitled to charge the fee.

Summary

Mrs C raised her concern about the council's handling of a planning application submitted by her neighbour to extend his property. In particular, she was unhappy that, following the submission of amended plans that included an area of decking, Mrs C was not renotified of these. She also complained about the handling of her representations.

After taking independent advice from one of our planning advisers we upheld the complaint that the council had failed to renotify Mrs C following the submission of the amended plans. As a result she was prevented from submitting her concerns about the amendments. We also found no evidence that the council had assessed the area of decking while processing the application. The council accepted that by mistake they had failed to notify Mrs C of the amended plans and that there was no evidence that the decking had been assessed. We did not uphold the complaint about her representations, as we found no evidence of fault in the council's handling of Mrs C's correspondence.

Recommendations

We recommended that the council:

• ensure that there are clear guidelines for the acceptance of amended plans to ensure that reiteration of neighbour notification, press advertising or other consultation or publicity is not overlooked;
• review their procedures on householder and delegated applications to ensure all material elements of a development are not overlooked during the processing of an application and are properly assessed before making any determination; and
• take steps to identify what action they can take using any available statutory powers or by negotiation to improve the current situation, and report back to the Ombudsman on the action they propose to take.

Summary

Mr C owns a house which is reached by a lane. The properties on the lane were built before the present council came into existence in 1996. At that time, in readiness for the reorganisation of local government, the former roads authority had sent the council a computer list of public roads, on which the lane was identified as one. Mr C did not know about this when he bought his property in 1997, and does not have a property enquiry certificate (a document produced by a council with information about the status of a property) from the time of his purchase. In 1998 a neighbour (neighbour D) bought a property there. His property enquiry certificate suggested that the lane was a public road, as did a plan he was later sent. In 2011, however, Mr C found out that the council considered that the lane was not a public road, and was unhappy about this.

In response to the complaint, the council said that, by 2004, they had realised that the property enquiry certificate issued to neighbour D was wrong, and had told him and apologised. (This meant that the council considered that the lane was in fact private and that the home-owners had the responsibility of maintaining it.) There was, however, a scheme under which owners could apply to pay half the cost (with the council paying the other half) of bringing a road up to the standard where the council would adopt it (take responsibility for it). This had been raised with the council before, but nothing had come of it. In 2011, Mr C made another enquiry about this, and was given costs but then learned that the council had no money for this in their budget. When Mr C was speaking to other residents about the project, neighbour D had provided a copy of his original 1998 property enquiry certificate. After seeing this, and knowing that the council had been maintaining the road verges etc, Mr C was unhappy with the council’'s insistence that the lane was private. He pursued this with the council, through solicitors and through a councillor and a Member of the Scottish Parliament.

When he brought the matter to us, we explained that where there is a dispute about status, it is not our role to make a definitive ruling. We did not uphold Mr C's complaints that the council failed to inform him of potential funding options or that they had unreasonably claimed that the lane’s inclusion in the council’'s list of adopted roads was in error. We noted their reasons in support of their stance on this. We did, however, uphold Mr C’s complaint that the council failed to follow the correct process to remove the lane from their list of adopted roads. This was because we found there was a lack of transparency about how this happened, and we made a recommendation about this.

Recommendations

We recommended that the council:

• further consider the status of the list passed to them on 27 February 1996 and take such action to regularise the matter as they deem appropriate.

Summary

Mrs C viewed a newly built rural property and, after the vendor (who was also the builder) presented a certificate of completion and a home report, Mrs C bought the house. On entry, she found numerous defects. Her solicitors and, later, two Members of the Scottish Parliament got in touch with the council about these on her behalf. Mrs C then decided to sell the property for much less than she had paid. A financial claim was made to the council on her behalf, but their loss adjustors refused it.

Mrs C complained to us that the council inappropriately failed to follow relevant legislation and procedures when they issued the certificate of completion. The council accepted, with qualification, that the officer responsible for inspecting the building and issuing the certificate had been at fault in doing so. Specifically, two matters were overlooked when the building standards officer carried out an inspection in January 2010, when there was a significant amount of snow lying on the ground. The council had apologised to Mrs C for this, but said that the vast majority of the defects about which she was unhappy related to the quality of the workmanship, which is not relevant to the issuing of a completion certificate. We noted this, but as the council had admitted errors, we upheld Mrs C’s complaint, and made a recommendation.

Recommendations

We recommended that the council:

• review the adequacy of their current procedures for carrying out the external elements of inspections in winter months.

Summary

Ms C complained about various aspects of the council's handling of a repair under the Tenements (Scotland) Act 2004. Ms C questioned whether the original repair to the roof had ever been done and, even if it had, the standard of the workmanship. This was because no one remembered the work having been done; the chronology of the notices and repair did not correspond; and another repair was required soon after. The council acknowledged administrative errors in their handling of the repair, but maintained that the work was carried out in 2010. They also felt that the time that had since passed made it impossible to confirm whether the latest repair was related in any way to the 2010 repair.

The fact that the work was carried out under the Tenements (Scotland) Act 2004 meant that we could not look at the first two aspects of Ms C’s complaint, as these were outwith our jurisdiction. However, we investigated the third aspect, about how they handled Ms C's complaint. The council acknowledged to us that they had not met their own timescales in doing so. They explained that they had reviewed their processes and had given feedback to the relevant members of staff. They had also recently adopted the model council complaints handling procedure recommended by our Complaints Standards Authority. However, we also found evidence that a council employee had told Ms C that the council would conduct the later repair at its own expense. This contradicted the council’s final response which said that they would only pay their individual share (as a part-owner of the building), so we asked the council for more information about this. In the light of the evidence received, we found there had been maladministration. We upheld this aspect of Ms C’s complaint and made a relevant recommendation.

Recommendations

We recommended that the council:

• consider whether it would be appropriate to reimburse the residents for their respective shares of the repair conducted in 2010.
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