Local Government

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.

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.
• 

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.