Local Government

Summary

Mrs C complained about the way the council dealt with a retrospective planning application for work that she had carried out in her garden. In particular, she was concerned that the council alleged that trees had been felled without authorisation, destabilising the bank. She was concerned that these comments had affected her planning application and raised public feeling against her application.

We found that the council had only noted one instance of unauthorised felling, the previous year, and had discussed this with Mrs C at the time, when she had agreed to replanting. We found that it was reasonable for them to mention this in the planning report and that information later passed to a councillor, which Mrs C had complained about, was also simply noting the landscape officer's observations. As we took the view that the council had reported the matter accurately, and as the landscape officer's observations were reasonable, we did not uphold her complaint.

Summary

Mr C had a blue badge for disability parking for a number of years but when he applied to the council in 2010 to renew it, his application was refused. Mr C said that this was despite his condition worsening. He re-applied in 2012, following surgery, and was granted a blue badge. He believed that the council did not handle his earlier application properly, and misinformed him when they said that it was successful in 2012 because of a change in legislation. Mr C also said that his GP did not have full information on which to make an assessment, and believed that there were flaws in the council's review process that resulted in his appeal being unreasonably declined.

We did not uphold Mr C's complaints. We found that changes in the regulations from 1 January 2012 did clarify the health grounds on which a local authority can exercise discretion to award a blue badge, where this is not automatically awarded (if an applicant is in receipt of certain benefits). There was no evidence to suggest fault in the way the council considered Mr C’s 2010 application. Mr C’s GP had the opportunity to comment on his application and the council’s records confirmed that it was assessed in accordance with their procedures. The information that Mr C’s GP had provided was not copied to him, but it is not the council's practice to do this, and Mr C had not asked for a copy.

Mr C had suggested that an appeal process should bring the parties together to discuss the application, and this would have identified that his GP’s records were not up-to-date. However, it was evident that the review of the decision to refuse Mr C’s application was conducted in accordance with the procedures in place at the time.

Summary

Mrs C complained about the council's failure to assert what she believed to be a public right of way. In addition, she raised concerns about the council’s failure to take enforcement action against a resident who used part of this area as a garden and had enclosed it, preventing access.

Our investigation looked at the council's responsibilities in terms of rights of way. We found that they carried out a substantial consultation exercise to determine whether or not the local residents were aware of a right of way at this location. They decided that they did not have sufficient evidence to establish whether or not a right of way existed and that they would, in all likelihood, be unable to defend such a decision in court.

The council also explained the process they followed when considering whether to take enforcement action. Having considered all relevant background information, and sought evidence, they were satisfied that they should not pursue enforcement action in relation to the change of use of the land or the enclosure of the ground.

Having considered the information provided by both parties, we were of the view that these were discretionary decisions - ie decisions that officers were entitled to take. We cannot look at such decisions if there is no evidence that something has gone wrong when taking them. As we did not find evidence of administrative failure, we did not uphold these complaints.

We did uphold a complaint about the way the council dealt with the complaints raised by Mrs C. As they had already apologised for the delay in responding to correspondence, however, we did not make any recommendations.

Summary

Mr C raised a complaint about the council's handling of a cement batching plant at a quarry. In particular, Mr C complained that the cement batching plant had changed from being an ancillary operation at the quarry to a mainstream operation and that the council had failed to require the operator of the quarry to obtain planning permission. Mr C also said that the council had failed to monitor lorry traffic to and from the quarry, and was unhappy with the council's handling of his representations.

During our investigation of the complaint the council explained that, having carried out inspections at the quarry, they were satisfied that the operation remained an ancillary operation. As we found no evidence that anything had gone wrong in reaching that decision, we could not challenge this and did not uphold the complaint. Similarly, the council explained that they were not required by any planning condition to monitor the movement of vehicles to and from the quarry.

On the matter of complaints handling, we were satisfied that the council responded to the issues raised, but found that they had failed to handle Mr C's complaint in line with their complaints procedure for which they had apologised. We, therefore, upheld this complaint, but made no recommendation.

Summary

Ms C complained about the council's actions in relation to blasting by the operators of a quarry in her area. She said that the council failed to ensure that a full and complete environmental impact assessment was carried out on the residential area beside the quarry, before they approved blasting at the quarry for 20 years. We did not find any deficiencies in the environmental assessment and the associated process. A specific assessment on the residential area was not required.

Ms C also said that the council failed to ensure that there were adequate planning conditions in relation to the blasting at the quarry. She complained that the council had unreasonably given the quarry operators permission to carry out test blasting at the quarry with inadequate safeguards for public safety and public amenity. The council had allowed the blasting under an earlier planning consent, as the more recent consent had not been implemented at that time. We found that the blasting operations were not excluded from the earlier consent. However, the council had an agreement with the quarry operators that the conditions in relation to blasting in the more recent planning application would apply. We considered that this was to be welcomed from a practical point of view, as it allowed a detailed monitoring scheme for the blasting to be drawn up.

We were also satisfied that the council had put reasonable safeguards in relation to the blasting in place. They had taken the relevant national planning advice into account and there was also a scheme for monitoring blasting vibration in place. We found that it was appropriate for a firm of environmental consultants to monitor the blasts. It was also common practice for the results of the monitoring to be kept at the site and made available for inspection by the planning authority at all reasonable times. In addition, there was a notification procedure in place to inform residents of the blasts. That said, we did comment to the council that they should consider occasionally monitoring the blasts themselves. We also found that the council had delayed in responding to complaints about the blasting and upheld Ms C's complaint about this delay.

Ms C made a further complaint that the council had obtained evidence that a condition regarding the quarry's hours of operation was being breached, but had failed to take enforcement action. The council said that it was their position that they had monitored the noise level at the quarry and no harm was being caused. They stated that the quarry operators had made an application to change the operating hours. They said that no enforcement action would, therefore, be considered until a decision was made on this application.

If a member of the public complains to us that there has been administrative fault or service failure by an authority in reaching a decision, and that he or she has suffered injustice or hardship because of this, we may look at the complaint. We can consider the process and procedures involved. We cannot, however, question the decision if there is no evidence of maladministration. We found that the council had followed the correct procedures in relation to this matter. We were also satisfied that it was appropriate for the council's enforcement officer to advise the quarry operators to make an application to vary the condition in relation to the operating hours.

However, at an early stage in our investigation, the council's chief executive had given assurances that the council would continue to monitor the operations at the quarry to ensure that there was no loading or unloading of lorries outwith the permitted hours. The council had failed to honour these assurances in view of their decision that no harm was being caused and enforcement action would not be taken.

Recommendations

We recommended that the council:

• write to the Ombudsman and Ms C to explain why they failed to honour the assurances given that they would continue to monitor the operations at the quarry to ensure that there was no loading or unloading of lorries outwith the permitted hours.

Summary

Mr C complained about information provided to him about planning permission in 2000 and 2007/8, lack of information sharing between the planning and building control departments, and the handling of his enquiries about these matters in 2010.

Our investigation, which included taking independent advice from a planning adviser, found that the information provided by the planning and building control departments had been accurate and complete and was not misleading. It had been made clear to Mr C and the architect who had acted as his agent that the grant of planning permission did not negate the need to apply for a building warrant and vice versa. We also found that the level of information sharing and co-operation between the two departments was similar to that in most if not all councils in Scotland. This also complied with the guidance offered by the Scottish Government via the Building Standards Division - Procedural Handbook. We did not uphold these complaints.

We did, however, uphold Mr C's complaint about delay. We found that there were delays in dealing with his queries when he came to sell his property in 2009-10. Mr C had to apply for a letter of comfort (a letter that confirms that any work done on a property without planning permission and/or a building warrant has been done to an acceptable standard). The council admitted that due to staffing difficulties in 2010 there were unacceptable delays in the processing and issuing such letters. They apologised to Mr C for this in their response to his complaint in January 2012, and took action to ensure that the situation was not repeated. They are also currently reviewing their systems in preparation for the implementation of the Building Standards Framework developed by the Scottish Government and due to be implemented in October 2012.

Recommendations

We recommended that the council:

• provide us with an update on the preparation for and implementation of the Building Standards Framework.

Summary

Mr C complained that following a water leak in his property, the council treated the water mark and then painted the whole area with a magnolia anti-mould paint. He was unhappy because the hall had previously been painted white, not magnolia.

The council had told him that rather than simply treat the affected patch with the anti-mould paint, the tradesman had painted the whole hall. While the colour was not his preference they believed that the decision to use the anti-mould paint was the correct one and that all reasonable steps had been taken to leave his home looking as good as possible. They confirmed that the anti-mould paint was only available to them in magnolia and did not think that further expenditure could be justified.

During our consideration of Mr C's complaint we found that the hall had been repainted in white but that he remained dissatisfied with the workmanship, and that the paint used was matt while he wanted a silk finish. We found that the council had acted reasonably and did not uphold his complaint.

Summary

Mr C complained on behalf of Mr A. Mr A is the owner-occupier of a detached house in a modern housing estate. His rear boundary adjoins part of an avenue of trees, for which the council are responsible. Mr A considered that the trees detracted from his amenity and had over a number of years asked the council to remove the trees closest to his garden. The council had resisted this course of action as they did not consider the trees were diseased or dangerous.

Mr A said that the council's inspection of the trees had been cursory and inadequate; that they had not given proper regard to his evidence that the trees were in poor condition; had failed to provide assistance to him to remove leaves and debris falling into his garden; had failed to accept that his amenity had been detrimentally affected; and had acted prejudicially to him by not taking action on the basis that other might complain.

We did not uphold any of Mr C's five complaints, as we did not find any evidence that the council had acted improperly. However, as the council policy to which they referred was not publicised, we made a recommendation about this.

Recommendations

We recommended the council:

• make available on its website a general statement of their current practice with regard to their responsibilities for trees in their area and the limited circumstances where they will intervene to manage or remove trees.

Summary

Mr C raised a number of concerns relating to the council's decision to allow their contractors to use an area of grass at the end of his street for storage of materials which related to the work they were carrying out. Mr C was dissatisfied that the site was regularly used by the council and complained that they did not consider other sites.

During our investigation the council explained why this site had been used and that other sites had been considered but had been unsuitable. The council also provided evidence that they had addressed the issue of health and safety during contacting and while the work was going on and had taken reasonable action to address any issues raised while the site was being used by the contractor. The council had also provided evidence of the action they had taken action to ensure that the site was secure. We found no evidence of maladministration in relation to the council's handling of the issues raised by Mr C.

Summary

Mr C is a resident of one of nearly 1500 sheltered housing units under council management. He was unhappy with the actions of the council and their agents during a consultation process for a review of sheltered housing provision. He said that the council unreasonably: convened the original consultation meetings in a limited number of centres, to which residents had to travel by bus; failed to engage a suitably qualified company to undertake a programme of research into sheltered housing provision; failed to tell family members about the consultation and the meetings arranged by the council; failed to invite relevant local councillors to the meetings; failed to make adequate arrangements in the meetings with sheltered housing residents; ignored the views of the majority of the residents; and refused to make tape recordings of the meetings available as promised.

We did not uphold any of Mr C's complaints. Our investigation found that: the original meetings were not for the purpose of obtaining all tenants' views, which were individually canvassed by questionnaire; the performance of the agents was essentially a contractual matter; it would have been unreasonable to have expected the council to widen the consultation to residents' families or to invite councillors. We also found that the council accepted that arrangements for meetings at individual complexes were not ideal, but that their decision had considered this and balanced it with the convenience of holding such meetings. There had been opposition to the changes from residents but this had been referred to and not ignored in the reporting of the consultation. We did not find that there had been a promise to tape meetings to play to those unable to attend.