Local Government

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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Summary

Mr C damaged the wheel and tyre of his car when he ran over a pothole in a minor road near his home. He made four complaints. The first concerned the processing of the claim he submitted to the council, which their loss adjusters had initially refused after it was passed to them to determine. The other three complaints related to the council’s responses or lack of acknowledgement and response to further reports of road defects and drainage problems at other locations near Mr C’s home.

Our investigation did not uphold any of Mr C’s four complaints. On the first, although the loss adjusters at first refused Mr C’s claim, the council had reconsidered the information and told them that it would be appropriate to make an offer of settlement. Mr C had refused the first offer but accepted a revised offer and was aware of his ability to raise a small claims action in the sheriff court. On the second complaint, the council had no logged record of an earlier contact from Mr C about a road defect in a particular place. When Mr C raised the matter by email several weeks later, the council acted appropriately. On the third complaint, relating to three other places, our investigation found that the council’s responses were reasonable. Finally, we did not uphold the complaint that the council failed to respond appropriately to Mr C's reports of road defects. Reports by members of the public were supplementary to the council’s inspection regime and were used to make the council aware of emerging defects.

Summary

Mr C lives near an open cast coal site which has been subject to several applications for planning consent, covering specific areas of the site. Mr C complained that the council had inappropriately permitted overnight working by the operator on part of the site that was only authorised for 12 hours’ day-time working, and failed to adequately investigate his complaint about work starting early. Mr C also complained that when the latest application for planning consent was made, the council unreasonably refused to allow members of the local community to address the planning committee.

Our investigation did not uphold any of Mr C’s complaints. Our investigation found that it had not been established that the operator was working overnight in an area of the site that only had planning consent for day-time working. The council had found that early morning site noise was explained by the operator as being linked to having drivers and other staff in place to start work at 07:00, and the council did not regard that to be a breach of the relevant planning condition. In refusing the request of residents' representatives to be heard before the committee considered the most recent application, officers had complied with the council’s published guidance (which allows third parties to address the committee only where there is a substantial body of objection to the matter under discussion). Our investigation did not uphold Mr C’s contention that this was discriminatory to objectors in rural areas. We did, however, make a recommendation in relation to Mr C's concerns.

Recommendations

We recommended that the council:

• liaise with Mr C to ascertain the pattern of working leading to his main complaints of noise, and agree three times when they should pay unannounced visits to ascertain the validity of his claims that there is unauthorised working between 19: 00 and 07: 00.

Summary

The area of the town where Mr C lives was excluded from the council's controlled parking proposals and Mr C and another resident felt that the parking problems had worsened since then. Mr C pressed for his area to be added to the controlled parking zone and organised a survey of residents, which met with a positive response to the introduction of controls. Mr C complained that the council delayed in progressing the matter; did not adequately explain a public consultation process they undertook; and the timing of the consultation was inappropriate, denying the local community council the opportunity to comment. Mr C was also unhappy about action taken by officers following a series of meetings and alleged the council had cancelled at short notice a public meeting arranged by the community council.

We did not uphold any of Mr C's five complaints. The council explained that they had perceived that not all local residents supported the introduction of controlled parking, and so decided to conduct a public consultation. This was, however, delayed because of parliamentary elections. Our investigation did not find the explanation of the purpose and timing of this inappropriate. The consultation revealed a significant body of objection in the area, and when this was reported, the committee decided to take no immediate action. A later meeting with officers had involved robust disagreement. On the basis of the council officers’ report, Mr C was then sent a warning about his future conduct and he himself submitted a formal complaint. After this, the council decided that, in the lead up period to local elections, officers should not participate in a public meeting arranged by the community council, although officers later attended a re-arranged meeting.

Summary

Ms C, a mature student, started a postgraduate degree. She had been living on her own in a two bedroom private let and had previously received 25 percent single person’s council tax discount. When she started studying, she applied for, and was granted, exemption from council tax during her studies. In November 2010, with the written consent of her landlord she sublet the extra bedroom to a lodger. The lodger was not a student but applied for, and was granted, housing benefit which continued until August 2011. Ms C did not ask the council about how having a lodger might affect her student exemption. In July 2011 after completing her second year of studies, Ms C herself applied for housing benefit, and it was then held that she as tenant was responsible for full council tax (less 25 percent single person’s discount) dating back to when her lodger arrived. By the time that the council had calculated this and told Ms C about it, however, her lodger had left. Ms C also moved out in November 2011 but the council then pursued her for substantial arrears of council tax for 2010/11 and 2011/12 and for an amount of overpaid housing benefit.

When Ms C pursued this with the council before submitting a complaint, they told her that they had issued a demand for the council tax in January 2011. They could not, however, provide a copy of the relevant demand or covering explanatory letter. Ms C made two complaints about the council: that they unreasonably failed to remove a student exemption from her council tax and notify her at the time of the revised council tax charge; and that they did not make it clear to her that subletting a room in her flat would affect her claim for housing benefit.

Although it is generally a claimant's responsibility to tell the council about potentially relevant changes, we considered that the council’s delay in notification meant that Ms C could not realistically pursue her lodger for the amount due. We upheld this complaint and made a recommendation to put this right. We did not uphold the second complaint, as it was clear that Ms C’s claim for housing benefit was made some seven months after her lodger’s housing benefit claim.

Recommendations

We recommended that the council:

• apologise to Ms C for their omission in not removing her student exemption earlier and in informing her of this; and
• credit Ms C's council tax accounts for 2010/11 and 2011/12 with an ex gratia sum of half the council tax liability incurred during the period of her lodger's occupation of the flat.

Summary

In June 2011, Mr and Mrs C submitted a planning application to build a house in their garden. They complained that planning permission was refused although at the pre-advice stage, the council did not identify any concerns. Mr and Mrs C also said that an application in principle had been made in accordance with council officers' advice. After refusal, Mr and Mrs C asked for the decision to be reviewed but this was also refused. They complained, in general, about the way in which the council dealt with their applications.

During our investigation we obtained independent planning advice from one of our planning advisers, and considered the complaints and planning files. We upheld three of Mr and Mrs C's six complaints. Our investigation found that, throughout the process, Mr and Mrs C had the benefit of planning advice as they had engaged their own planning consultant to assist them with their application. Notwithstanding the advice they said they were given by the council, it was clear that the only way to determine an application was to submit it. Our investigation showed that there was no evidence to suggest that they had been encouraged to submit an application in principle. However, when the application came for validation, our planning adviser said that the council failed to deal with it in terms of the appropriate planning legislation. They also uploaded irrelevant information onto their planning website. However, at the review stage the council followed government guidance. When Mr and Mrs C were unhappy with the outcome and complained, we found the council failed to respond to their concerns in a reasonable manner.

Recommendations

We recommended that the council:

• formally apologise for their error in validating the application;
• reimburse fifty percent of costs as it appears doubtful, given that they did not require design details, that they would have gone on to require drainage information;
• apologise for their error; and
• formally apologise for their shortcomings in the way they handled the complaint.

Summary

Ms C, who is a member of the Scottish Parliament, complained about the council on behalf of her constituent (Mr A). Mr A had originally approached the council to seek permission to operate a car cleaning business from a council car park. The council refused this on the basis that there was a general presumption against the carrying out of businesses in their car parks. Following this, Ms C contacted the council on behalf of Mr A and after some communication, the council offered him the opportunity to operate his business on a two month trial basis, subject to the approval of a business plan. A significant period of time passed before Mr A's business plan reached the council. By then, they had introduced a parking order prohibiting the cleaning or washing of vehicles in any council car park, and on that basis the application was refused.

Ms C complained to us that the council failed to appropriately consider Mr A's application to operate a car cleaning business; unreasonably delayed in responding to his concerns; inappropriately failed to tell her about an order being considered by committee in relation to the setting up of businesses in council car parks; and that the order unfairly allowed some businesses to operate but not Mr A's.

After investigating these complaints, we did not uphold them. We were satisfied the council properly considered Mr A's proposal before the introduction of the order and had explained their position clearly. Although Mr A felt the submission of a business plan was unnecessary, the council were entitled to ask for this before deciding whether to allow him to operate his business. In addition, the evidence available confirmed that the council responded to concerns raised by Mr A, and others on his behalf, within a reasonable time. The process for notifying people about orders being considered by committee was to advertise in local newspapers, with information also available on the council's website. The parking order was advertised by the council but no objections were received. Lastly, the parking order specifically prohibited the cleaning or washing of vehicles in council car parks. It gave the council discretion to allow certain businesses to operate that did not involve the cleaning or washing of vehicles, when it was appropriate to do so.