Local Government

Summary

Mr C complained about the council's handling of an application to erect a wind turbine near his property. In particular, he disagreed with the council that he did not have a notifiable interest and was dissatisfied that he had not received neighbour notification. He also maintained that the council had ignored relevant guidelines when recommending the development for approval, and that the planning report had contained inaccurate and potentially misleading information.

After taking independent advice from one of our planning advisers we did not uphold Mr C's complaints. We found no fault in the council's handling of the neighbour notification procedures and were satisfied that, in line with those procedures, Mr C did not have a notifiable interest in the proposed development. We also found no evidence that the council had failed to take account of all relevant material considerations (genuine planning considerations related to the purpose of planning legislation, which is to regulate the development and use of land in the public interest) and were satisfied that elected members had full information before reaching a decision on the development.

Summary

Mr and Mrs C complained about how the council handled their objections to a planning application that their neighbour submitted, which involved the demolition of an existing conservatory and the building of a single storey extension.

Mr and Mrs C submitted a letter of representation to the council objecting to the planning application because the planned extension included part of the mutually owned gable wall of the house. They were unhappy that the council did not take action against against their neighbour after they told the council that they were not notified of the proposed planning application, despite being co-owners of the main walls and roof of the divided house.

Mr and Mrs C were also unhappy that the wording of the development advisory note to their neighbour had been changed following a meeting of the development management committee, and that the council did not take appropriate action to correct the advisory note after it was drawn to the chief executive's attention.

Our investigation found that, whilst it appeared there had been an irregularity with the submission of the land ownership certificate by the applicant, we did not consider that it amounted to significant administrative error. Mr and Mrs C were able to submit their representations in relation to the planning application, which in turn were properly considered by the council. In relation to the advisory note, we established that such notes have no legal bearing and are outwith the scope of the formal legislative planning process. Therefore, we considered that the council had not acted unreasonably in amending the wording.

Summary

Mrs C and her neighbour live at opposite ends of a row of four cottages. The two middle properties are owned by a third party (Mr M) who operated one of the properties as a shop. Mr M applied for and was granted planning permission to extend the shop into the second of his properties. Mrs C and her neighbour then complained to the council about an ongoing issue with noise from internal and external air cooling units connected to the shop. Mrs C considered that planning consent should have been sought and required for the units.

We found that Mr M did not include details of the cooling units in his planning application and that the council could not, therefore, take a view that planning permission was required before consent for the shop development was granted. Following Mrs C's complaint, the council decided that planning permission was required for one of the units. However, they took no enforcement action to regularise the situation, as environmental services were still investigating complaints about the noise. We found it reasonable for the council to delay taking enforcement action on the planning merits of the units pending the outcome of the noise investigation, as this could have resulted in the units being changed or moved. We were also satisfied with the council's consideration of complaints about soundproofing between the cottages, but we were critical of a lack of record-keeping showing the reasoning behind their decisions.

Although we acknowledged that the process took some time, we found that there was clear evidence of continuous activity by the council in relation to Mrs C's complaints about noise over a period of one and a half years. We also found that they adhered to their own policies by taking a preventative approach and by supporting Mr M in trying to resolve the issue. We found that due to the nature of the work required, this process can, and often does, take a considerable period of time. Mrs C complained that the council did not act on its findings and progress to legal action but we found that the council acted on its findings throughout and moved to take legal action at an appropriate stage. Had they taken legal action sooner, they would have been in breach of their own policies and of government guidance in relation to the preferred preventative approach to resolving such issues.

We upheld Mrs C's final complaint that the council did not provide updates to her when they had agreed to do so. Although we did not consider it realistic for the council to report back on every single event, we found that when they agreed to provide an update and did not, this was not in keeping with their customer service strategy. The strategy says that they will keep their commitments to customers when providing services and tell them about the progress of the service requested.

Recommendations

We recommended that the council:

• consider, when dealing with a complex service request, allocating a single point of contact to the complainant and agreeing at an early stage how and when updates and communications will be provided; and
• consider issuing a memo to all relevant staff to ensure they are aware that an abatement notice will become time barred from proceeding to legal action within six months of the date of first issue.
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Summary

Mr C complained about the council's decision to grant consent to his neighbour to drop the kerb fronting his property to provide a paved area for parking. Mr C complained that the finished work did not comply with the consent or the assurances he had been given that action would be taken to rectify this, and said that the effect of this was a loss of parking space in an already congested street.

We found that the council had told Mr C at the time of his initial complaint that his neighbour's proposal was regarded as permitted development, and so did not require planning permission. Mr C was told that a permit would be required to lower the kerb. He complained to the council when the works were completed, saying that the final length of the actual dropped kerb was longer than he had been told would be permitted.

We did not uphold Mr C's complaint. Our investigation found that the council had investigated it and, from inspection of the site and discussion, had accepted the contractor's explanation for the decision to alter the length of the dropped kerb. When permission was given to drop the kerb, the width of the white access protection marking line was set at 4.5 metres. The council then decided that this could be reduced from 4.5 metres to 3.6 metres, to minimise the loss of resident parking space. The council had told Mr C this in their correspondence with him. We were satisfied that the council had considered his concerns and exercised their discretion in the matter in a reasonable and fair way.

Summary

Mr C complained about the council's handling of a repair to a communal drain. He complained that the council had failed to treat it as a Right to Repair issue and should have compensated him £100 for not dealing with the repair quickly enough; had delayed in undertaking the repair; and in cleaning up the affected area; had failed to arrange for further work to the concrete slabs surrounding the sewer in the communal area; and that there was delay and inaccuracy by the council in responding to his complaints.

We did not uphold Mr C's complaints. Our investigation established that this type of repair was not covered in the prescribed list of repairs to tenanted property under the Right to Repair scheme, as set out in the Housing (Scotland) Act 2001. We also found that the repair to unblock the drain was completed within the terms of the council's repairs policy; and as there is no specific timescale for cleaning repairs, and this was attended to within a short period of time, we did not find that there was delay in cleaning up the area.

The council told us that they had not been aware of Mr C's concerns about the condition of the concrete slabs before we contacted them about this, and it was later confirmed that this had been attended to. We also found that the council had responded to the complaint within the required timescales and, while there was a regrettable minor inaccuracy in the council's response to Mr C about the time and date for completion of the repair, it did not amount to a significant or material failure.

Summary

Ms C complained about the council's processing of two planning applications in respect of the demolition of a property in a conservation area and the erection of a new home. Two applications were required due to separate consent being required under conservation area consent requirements.

We did not uphold her complaint that the processing was incorrect as the second application did not include information required by council guidance, because our investigation found the application did in fact include this information. We noted however that in their response, the council had not made this clear to Ms C.

We did uphold Ms C's complaint that the council did not respond properly to her complaints. That there were lengthy unexplained delays, and the final response failed to address an additional concern Ms C had raised. We also noted it was not reasonable that the report about the first application was not available on the council's online portal until eight days after the application was granted. We recognised this prevented members of the public having faith in the process.

We also noted some issues in relation to the way the two applications were handled; for example, the applications could have been handled alongside each other, as the process as it stood suggested one had pre-empted the other. In addition, there was some key wording missed out in error in the first application, which could potentially have been misleading and suggested the second application would not be required. We drew this to the council's attention and made three recommendations.

Recommendations

We recommended that the council:

• provide Ms C with a full apology for not responding to her complaint timeously and for not fully addressing the concerns she raised;
• provide the Ombudsman with evidence to demonstrate that the council's internal complaints procedure is being complied with, including evidence that complainants are contacted to seek agreement for further time to respond if required; and
• review and improve procedures for planning applications which require separate conservation area applications to ensure a pragmatic approach and provide evidence of this review to the Ombudsman.

Summary

A firm of solicitors complained on behalf of their client (Miss C) that the council had failed to carry out appropriate neighbour notification procedures connected with a planning application for a neighbouring property. As a result, the council had not identified that Miss C should have been notified about the application. The planning application related to a site which had received planning consent in 2008 for housing development and for which a further planning application had been submitted in 2011. Miss C had received neighbour notification in 2008 but not in 2011, although the application was advertised in the press.

Miss C was dissatisfied because the council did not uphold her complaint because there was no statutory requirement for them to notify her under the current regulations. However they also told her that she should still have received a notification, but did not because the planning officer failed to check that all such relevant notifications had been carried out.

Our investigation confirmed that there had been a change in the regulations since the 2008 application was before the council. The council's investigation found that the complaint of failure to act within the terms of the current planning regulations and guidance was not upheld, and we concluded, after taking independent planning advice, that this was a reasonable decision to arrive at. We did, however, find inconsistency in their decision not to uphold the complaint but still find that Miss C should have been notified. However, the council confirmed that the recommendations they made as a result of their investigation had been acted on, to ensure that their procedures for neighbour notification would in future be adhered to. We were satisfied with the action taken by the council to follow up on their investigation and did not consider that any further action was required.

Summary

Mr C, a council tenant, complained about changes to the lighting in the close that he shares with his neighbour. He said that, historically, lighting was provided from dusk to dawn, but that this service was withdrawn in November 2011.

Our investigation found that the council were not obliged to provide lighting in the close. The original light was connected to Mr C's neighbour's electricity supply and, although there was an understanding that the light would be left on overnight, this was ultimately at her discretion. When a new tenant moved into that property she decided not to use the light. Although the council were not required to light the close, we found that they had provided Mr C with a second light, over which he had sole control. We were satisfied that this was an appropriate gesture and that they had suggested other steps that he could take to increase the level of lighting available.

Summary

Mr and Mrs C complained about the council's handling of an application for planning consent for a two storey extension to the house next door. They alleged that the council failed to handle the planning application appropriately. They said that the planning officer wrongly calculated the overall size of the house next door in assessing the extension; their objections were not appropriately taken into account, particularly with regard to overshadowing and light restriction to their windows; granting consent with a specific finish could only be achieved by the neighbours accessing their property; and the council failed to take into account the future difficulty of maintaining Mr and Mrs C's property.

As part of our investigation we obtained independent advice from one of our planning advisers. We found that an error had indeed been made in failing to consider the earliest of several previous extensions to the property next door, which resulted in the wrong baseline being used to compare percentages. This did not, however, in the view of the planning adviser imply that consent had wrongly been granted. In general, appropriate consideration had been given to the council's supplementary planning guidance notes. We did not uphold the three other complaints. We noted that the applicant, as he was entitled to do, applied for consent to construct the extension up to the boundary but the council had, in granting consent, omitted to include a condition relating to a particular finish. We, therefore, made a recommendation about this.

Recommendations

We recommended that the council:

• consider the error which occurred in this instance with a view to ensuring that in future the full relevant planning history of a property is assessed in respect of planning applications for domestic extension; and
• explore the reasons why, when the local plan guidance generally requires that the materials and finish of an extension match the existing house, such a condition was not applied to the consent on the application.
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Summary

Mr and Mrs C's property flooded on two occasions, once in 2009 and again in 2011. There was some uncertainty as to whether the flood water was rain or river water, however, as it was flowing onto their property via the public highway, they felt the council were responsible for taking action to prevent this. We identified that, in responding to the flooding reports, the council had surveyed the situation and taken steps to try to assist. We noted that they had attempted to have a neighbouring land owner address his private drainage system and they also carried out some clearance and repair works on the surrounding drainage. Following this, they were satisfied that the road drainage was fit to cope with normal conditions.

The council highlighted that responsibility for protecting their property from flooding lay with Mr and Mrs C and they offered advice on further steps they could consider taking to reduce the flood risk. The recently enacted flood prevention legislation requires the council to carry out clearance and repair works on bodies of water where they feel that this will substantially reduce the risk of flooding. In this instance, they were not persuaded that further clearance and repair works alone would substantially reduce this risk. This was a matter that the council were entitled to decide, and we cannot look at such a decision unless there is evidence of something going wrong in the way in which it was taken. We were satisfied that the council appropriately investigated Mr and Mrs C's concerns and took what we considered to be reasonable action to try to assist. In the circumstances, we did not uphold the complaints.