Local Government

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.

Summary

Ms C had been unable to work due to health problems. She moved to the council's area when she found a new home which was let privately, and applied to the Department of Work and Pensions (DWP) for benefit and to the council for housing benefit. After Ms C moved there, she found five weeks' temporary work, and told the DWP. She understood (wrongly) from a conversation with a DWP officer that there would be a 'run on' period of benefits during a period of temporary employment. When she later started a second period of temporary work, the DWP and council began a benefits investigation which took some months to complete. Ms C meanwhile failed to make full payment of rent to her landlord, who served her with notice to quit. Ms C applied to the council for rehousing on the basis of threatened homelessness.

The benefit fraud investigation found that Ms C had misunderstood the processes involved and accepted that she had not intended to defraud. Her housing benefit was re-instated and the landlord was given a substantial direct payment of housing benefit because Ms C was more than eight weeks in arrears of rent. Ms C disputed that she had had a live claim for benefits while she was working, and considered the payment to her landlord had been inappropriate. Removing Ms C's live claim then created an overpayment of housing benefit, meaning that she was being held accountable for a large repayment, which she said would cause her financial difficulty. After Ms C met a senior member of staff, the benefit account was cleared of the outstanding balance, at a late stage of the council's consideration of her complaint.

Ms C made three complaints to us. Our investigation did not uphold her complaints that her concerns about a member of staff had not been investigated appropriately and that a member of housing benefits staff had inappropriately disclosed information to the homelessness team, as we did not find evidence to support this. Our investigation did, however, find that it took too long (nine months) to take Ms C's complaint through the four stages of the council's complaints procedure.

Recommendations

We recommended that the council:

• apologise to Ms C for the unnecessary stress that the process of completing their complaints procedures caused her.

Summary

Planning consent was granted for the erection of 30 new houses. The planning consent included a condition that required the developer to submit a scheme for the treatment of Japanese knotweed growing on the site before commencing work. Mr C complained that the council allowed work to start before this condition was fulfilled. He also complained about delays to responses from the council to his complaint correspondence.

We did not uphold the complaint about the work starting too early. Our investigation found that the condition was worded in such a way that it only required a scheme to be submitted to the council. There was no requirement for the scheme to be approved or implemented before work started. We considered, however, that it was implied that an approved scheme, including proposed timescales for the treatment of the knotweed, should have been in place before work started. We found that such a scheme was submitted in good time, and was approved by the council subject to certain additional precautions being taken by the developer. The council worked with the developer to ensure these precautionary measures were in place.

When responding to Mr C's concerns, the council noted that the work that he described as having started was site clearance work rather than development. We accepted that in planning terms there is a difference between the two, and that there was no opportunity for the council to take enforcement action against site clearance work, which does not require planning consent. We were satisfied that the council fulfilled their role in planning terms, as they highlighted to the developer that specific action was required to prevent the spread of knotweed and ensured that a scheme for this was in place. Any subsequent work by the developer that may have caused the spread of this controlled species would have been a criminal offence and not a matter for the council as planning authority.

Whilst we were satisfied that the council did not permit development on the site before the required scheme was in place, we found their record-keeping to be poor and their communication on the matter to be confusing. We upheld this complaint and were critical of their failure to keep an adequate audit trail of their tracking and approval of the condition. We were also critical of their handling of Mr C's complaints correspondence. Some of the council's responses were delayed beyond their 20 working day target response time and one email received no response at all.

Recommendations

We recommended that the council:

• review their processes for tracking and approving conditions; and
• apologise to Mr C for the poor handling of his complaint.

Summary

Mr C complained about the council's landlord registration scheme. He said that the council had unreasonably put him on the register after a phone call, when their written guidance clearly says that applications should be made online or by paper application form.

Our investigation found, however, that this was a discretionary decision that the council were entitled to make. We took the view that they acted in good faith for the benefit of Mr C, who might otherwise have been at risk of being reported to the procurator fiscal.

Summary

Mr C complained to us that the council failed to take appropriate action about unauthorised works in a harbour near his home. He maintained that the council had passively watched these works over a period of time, knowing that as responsible planning authority they were legally required to take enforcement action to stop them; that they pretended for several months that they were unaware of their legal rights and their duty to take enforcement action; and that they had jeopardised the outcome of any future application for planning consent for these works by demonstrating disregard for the rights, views and wishes of the people in the town.

When we first received the complaint, a decision about the development was still going through the planning process. Because of this, we told Mr C that it would not be appropriate to investigate at that time. After the council confirmed to us that an application for retrospective planning consent had been granted, we investigated Mr C's complaints but did not uphold them.

We obtained independent advice from one of our planning advisers. He noted that the planning background was complex in that parts of the harbour were listed; the harbour was in a conservation area; the harbour authority were a statutory undertaker (ie that they had legal rights to carry out certain developments and works) and claimed that the development was permitted; some of the works were below the high water mark; and claims had been made that because of works undertaken in the past it was not possible to take successful enforcement action. He also pointed out that the council's enforcement powers were discretionary rather than mandatory. We found that the council had opened an enforcement file before Mr C had contacted them. They had also properly liaised with the developer and his agents and had reported to the appropriate committee on four occasions, explaining that they had asked the developer to submit an application for retrospective planning consent. This was later validated. Mr C's complaint also related to deficiencies in the local availability of plans for inspection but we found that the council had taken swift action to remedy the problem.