Local Government

Summary

Mr C complained that, following a storm, a neighbour's tree fell across the garden ground of a number of residents. One of the residents was a council tenant and, as a result, the council offered to arrange for contractors to remove the tree and large tree stump. However, a number of residents refused to contribute towards the costs of removal, so the council arranged for the tree to be cut into sections and for the sections which lay in their tenant's garden to be removed. While the tree was being cut up, its root ball fell back into the hole that was made when the tree fell, with the roots protruding into Mr C's garden. Mr C was unhappy that the council allowed this to happen, and felt that the root should have remained where it was.

Our investigation found that this was, essentially, a private legal matter between residents, and we did not uphold Mr C's complaints. We found that the council had acted appropriately in attempting to co-ordinate the removal of the tree and its stump and, when some residents refused to contribute, appropriately arranged to remove the parts relating to their own tenant's property.

Summary

Mr C complained that when planning permission was sought for a development beside his property, the council did not properly take into account his representations against the application.

We did not, however, investigate the complaint, as we were unable to agree with Mr C the wording of the complaint he wanted us to pursue or the outcome he was seeking.

Summary

An advocacy worker (Ms C) complained on behalf of Mr and Mrs A about the special school attended by their son (Master A). Following an episode of challenging behaviour, the school requested that he be collected and taken home. She said that when he was picked up, he reported that he was sore, and was later found to have unexplained bruising to his body. Ms C made six complaints about this.

We upheld three of Ms C's complaints. Our investigation found no evidence that the school had unreasonably physically restrained Master A. Nor did we find evidence that the school had not provided one-to-one support, as we could find no consistent record of their having agreed to do so. We did, however, find significant shortcomings in the school's record-keeping in relation to the incident and also of meetings where Master A's needs were discussed. We did not uphold the complaint that his teacher did not have sufficient training or experience.

Recommendations

We recommended that the council:

• apologise for the failure to keep accurate and consistent records of meetings.

Summary

Mrs C was unhappy with the way in which the council dealt with her complaint. She said it was confusing; her complaint was not clarified; she was not offered a three stage process to which she said she was entitled; and her allegations about missing documentation were not acted upon.

In investigating her complaint, we carefully considered all of the information provided by Mrs C and by the council. A review of the documentation showed that although some of Mrs C's complaints were dealt with under the council's social work complaints procedure, it had been inappropriate to do so as she was not a user of social work services. After that, although she was correctly told that other complaints could not be dealt with under this procedure, she was not advised of the council's standard complaints procedure nor was she signposted to us in the event that she was unhappy with the outcome of her complaint. We noted that the reason that she expected to be able to use a three stage procedure was because some of her complaints had incorrectly been put through the (three stage) social work complaint procedure. Our investigation went on to find that the terms of Mrs C's complaint were confirmed with her; that the council were unable to disclose all the available information to her in accordance with the Data Protection Act and that the offer of a meeting that had been made still stood. Therefore, while we upheld Mrs C's complaint about lack of proper advice about the complaints procedure, we did not uphold her other complaints.

Recommendations

We recommended that the council:

• apologise to Ms C for failing to provide adequate information about the complaints procedure; and
• ensure that all staff who deal with the public are fully apprised of how their complaints procedures work in order that they can give appropriate advice.

Summary

In 2005 the council granted planning consent for a developer to build 45 houses in a field in Mr C's village. A condition of the consent required the developer to submit a proposal to provide children's play facilities, and for any approved proposal to be implemented by the time the tenth property was occupied. Mr C complained that, although the development was almost completely built, no new play facilities had been provided. Rather, the council had accepted a payment from the developer to help improve an existing play area. Mr C said this decision was contrary to the planning conditions. He also felt that the council failed to consult with the local community about the developer's proposals, and a change in council policy that allowed the use of such contribution payments.

We were satisfied that the wording of the planning condition did not specifically require a new play area to be provided, and allowed for the improvement of existing facilities. We also found that new supplementary planning guidance specifically encouraged the use of contribution payments to improve existing facilities, as this was considered to provide better value than building new ones. Matters had also been complicated by the developer going into administration. In the circumstances, we felt it was reasonable for the council to consider other options, such as contribution payments, to ensure that play facilities were provided. We were satisfied that the local community was consulted on the introduction of the supplementary planning guidance that led to the introduction of contribution payments as a means of improving existing facilities.

We noted, however, that the tenth house had become occupied a few years ago. The developer should have had their proposed new play area in place by that time and we considered that the council could have taken enforcement action to ensure it was built. We recognised that enforcement action is a discretionary matter and the end result may not have been different. However, we were critical of the council for failing to show any evidence of having considered taking enforcement action or of having recorded their decision making.

Recommendations

We recommended that the council:

• ensure they have a process in place to consider whether enforcement action is necessary and to record their consideration of this.

Summary

Mr and Mrs C were granted planning permission to build a property. As a pre-requisite to issue planning consent, however, the council decided that Mr and Mrs C had to make an education contribution. This is a payment developers must make to contribute to school provision if their development meets certain criteria. To determine whether a developer must make a contribution a method is used that involves a calculation. Mr and Mrs C disputed the calculation. They said that if the council had used another calculation they would not have to pay an education contribution. They were also concerned that the figure the council arrived at changed over the course of their application.

After taking independent advice from one of our planning advisers, we did not uphold this complaint. The adviser confirmed that it was appropriate for the council to determine the method and calculation themselves. The adviser also said that the change to the figure was not unreasonable in attempting to reach agreement on a planning contribution.

Summary

Following the death of his elderly mother, Mr C was appointed executor of her estate. As beneficiary, Mr C subsequently inherited his mother's house, which he kept as a second home. During the executry period, the property had been exempt from council tax. Mr C made seven complaints against the council about delay in sending him correct council tax notices for the property for 2010/11 and 2011/12; failure to issue receipts for cheques he sent; failure to reply to correspondence, and delay in responding to his complaint and to deal with the issues he had raised.

Our investigation upheld four of Mr C's seven complaints. We considered that the need for the protracted correspondence could have been avoided if the council had acted promptly, when informed of the confirmation the estate, to find out who had become liable for council tax. They did not do this and in an invoice sent to Mr C (as executor) they wrongly extended exemption of council tax, although they later corrected this. The council was, in light of that correction, obliged to collect the correct amount of council tax owing. We upheld Mr C's complaints about the failure to issue receipts or reply to letters, and about delays in the complaints process.

Recommendations

We recommended that the council:

• review the adequacy of their current procedures in respect of communicating with executors, and consider providing a leaflet to explain exemptions, discounts and the information they will require after an executry is confirmed; and
• apologise to Mr C and waive their ability to pursue the sum outstanding for 2010/11.

Summary

Ms C's complaint was about proposals to site a doctors' surgery behind her home. Ms C had objected to the original proposals in 2004. The acknowledgment of her objection indicated that she would be told the outcome, but that did not happen. Consent for the initial application was issued in 2006, after the application was referred to Scottish Ministers. Ms C, unaware of this, obtained planning consent and a building warrant for a rear kitchen extension to her property which was completed in 2007. In late 2009 an amended application was submitted for the surgery proposals.

Ms C made three complaints. We upheld two - that the council failed to tell her that the initial planning permission had been granted, which our investigation found was clearly the case, and that they failed to respond appropriately to her complaints correspondence. On the latter we found that the timescales exceeded the council's published targets. We did not uphold her complaint that the council failed to ensure the site plans were updated to show her extension, as site plans were the responsibility of the developer. However, as we found that the council's geographical management system did not show Ms C's kitchen extension we made a recommendation about this.

Recommendations

We recommended that the council:

• examine why, given the completion in January 2008 of the approved building works to form a rear extension to Ms C's home, that extension is not shown on the council's geographical mapping system; and
• consider reviewing their current procedure of acknowledgement of receipt of representations on planning applications to direct relevant parties to information publically available on the council's planning portal.

Summary

Mr C applied for planning permission to install solar panels in the grounds of his property, which was a Grade B listed building. He told us that he had intended to take advantage of the government's feed-in tariff scheme, which paid energy producers for excess electricity that was returned to the national grid. The council approved the planning application, but applied a condition requiring him to dismantle the equipment after ten years. Whilst they advised him that he could reapply after ten years to extend the permission, Mr C was reluctant to proceed on this basis. He asked for the condition to be reviewed by the planning Local Review Body (LRB), noting that the feed-in tariff scheme was intended to run over a 25 year period. The LRB concluded that a 25 year time-limited condition would be more appropriate and granted planning permission on that basis. However, while Mr C was pursuing his appeal with the LRB, the government changed the terms of the feed-in tariff scheme, making his solar panels financially non-viable.

Mr C complained that the council applied a 'catch-all' condition, normally used for wind turbines, to his planned solar panel installation. He also complained that they should have made him aware of the ten year condition at the pre-application stage, as it is applied consistently across all renewable energy developments. Mr C felt that the council should have applied conditions that reflected the terms of the feed-in tariff scheme.

Our investigation confirmed that Mr C had attended a pre-application meeting with the council's planning officer. Whilst the planning officer said that she had told Mr C about the ten year condition, there was no record of this and we were unable to confirm what information, if any, was provided. We found that it would have been good practice for the council to provide details of any standard conditions at the pre-application stage, but noted that there was no statutory obligation for them to do so. We learned that the council have since accepted that they could provide this information and have taken steps to ensure that it is provided in the future.

We did not uphold Mr C's complaints. We considered it reasonable for the council to impose time-limited conditions on applications for renewable energy projects, and were satisfied that any timescale set was at their discretion. We did not find that the feed-in tariff scheme should have been a material consideration (a genuine planning consideration related to the purpose of planning legislation, which is to regulate the development and use of land in the public interest) when determining the planning application, but felt that they could have taken into account the financial viability of Mr C's project. However, we considered it reasonable for the council to take a cautious approach in the first instance and for such matters to be addressed at a review stage if necessary. Whilst the timing of the changes to the feed-in tariff scheme were unfortunate, the council would not have been able to predict these and we were satisfied that the planning process operated as it was intended to.

We were also satisfied that it was reasonable of the council to apply their standard ten year condition to solar panel installations, despite evidence that this had been used for wind turbines in the past. We considered the key issue to be the requirement to dismantle any redundant or obsolete equipment, rather than the nature of the equipment itself.

Summary

Mr and Mrs C complained about the council's handling of an application for two wind turbines which were proposed to be built some distance from their rural farmhouse. The application was submitted in 2011 following two previous applications, one of which had been withdrawn and one of which had been refused. Mr and Mrs C were particularly concerned about the adequacy of acoustic reports submitted by the applicant's agents and had sent the council several letters about this, making representations about their concerns. They complained to us that the council did not reasonably respond to their enquiries about noise and other issues. They were also unhappy with a report about the application submitted to the council's committee, because they felt that the methods the council had used to assess the impact of noise from the proposed development on their property had not been reasonable.

Our investigation did not uphold either complaint. However, we noted that when Mr and Mrs C complained of not getting a response to points raised in their representations, a senior planning officer told them that it was not possible for the council to correspond because of the volume of objections received from third parties and because responding to third parties might be construed as prejudicial to the council's later consideration of an application. Mr and Mrs C had not been told this when their representations were acknowledged, so we made a recommendation to the council about this. In respect of the second complaint, we found that the council's report was full and balanced and the consideration of whether Mr and Mrs C's property would be affected by noise was in line with central government advice.

Recommendations

We recommended that the council:

• review whether the content of their standard letter of acknowledgement of receipt of representations should include an explanation as to why officers are unable to enter into discussions with third parties on the details of those representations.