Local Government

Summary
The owners of three properties located next to another property with a large rear garden complained about a planning application. The properties are in a conservation area but are not listed as of historical or architectural interest. An application for planning consent was made to build a single house on a plot in the large rear garden.

The complainants objected, saying that this would dominate their rear garden area and have consequences for daylight, sunlight and privacy. The application, which was subsequently amended in the light of comments from council planning officers, attracted a large number of objections and other representations, including a representation from a local councillor (made in a private capacity). When the amended application was placed before the relevant committee, they decided to hold a hearing of parties and a site visit. The hearing was addressed by two of the complainants, and by other interested parties, and the application was given conditional approval.

The complainants alleged that the council did not take adequate steps to notify the councillor about the hearing and failed to ensure that the committee that determined the application was provided with adequate plans on the proposed development.

We did not uphold these complaints. We found that the councillor's name was missed from the list of objectors because of an oversight, but the evidence also suggested that the council took adequate steps to let him know about the hearing through the normal correspondence system for councillors. The complainants also said that a site location plan attached to the report to the committee did not show their rear garden arrangements. The council said that the site plan submitted by the applicants agents was based on the Ordnance Survey map of the area and was sufficient to validate the application and establish the proximity of neighbouring properties. The plan attached to the report was purely designed to draw members' attention to the location, and was not required to show ownership boundaries in neighbouring properties. We took the view that the matter of the map provided was not one for which the council was responsible, noting that the committee was in any case able to view the site before coming to their decision.

Summary
Mr C complained that the council had considered a planning application for student accommodation as a 'local' development rather than the 'major' development that he considered would be more appropriate. He took this view because planning legislation says that developments of over 50 dwellings should automatically be considered as major. The council's view was that although the development consisted of around 100 bedrooms, as they were not self contained, they could not be considered as separate dwellings or flats.

We reviewed the legislation and government guidance and took advice from one of our planning advisers. We did not uphold Mr C's complaint as we took the view that the council were correct in saying that the individual rooms could not be considered as self contained. The development was, in effect, one of around 15 units each containing a kitchen, four or five bedrooms and a living area.

Summary
Mr C had a long history of owing the council money in respect of community charge and council tax.

His complaint had a number of aspects. These included disputes about whether the council should have pursued Mr C for council tax, and about what he was liable to pay. Other allegations included that he was not given the right to challenge the council's decisions and that the council did not follow proper procedures in arresting his earnings, issued incorrect instructions to sheriff officers and delayed in responding to correspondence.

We did not uphold any of these complaints as we found no evidence that anything had gone wrong in the processes concerned. We also noted that while it was unfortunate that a sum that had been arrested by the council remained frozen in Mr C's bank account for nearly six years, this was a matter for the Trustee in Bankruptcy, not the council, to pursue. We found that the council had told Mr C that he had a right of appeal to the Valuation Appeals Committee in respect of his dispute about liability for council tax.

Summary
Mr C was concerned that the council decided not to fund repairs to his local private road (also known as an unadopted road). He complained that the predecessor council had, in 1988, entered into an agreement with residents to carry out surface repairs to these roads. He was of the view that the current council should honour this earlier agreement. The council responded that they had no legal duty to maintain private unadopted roads and advised that, due to budgetary pressures, they had decided to reduce the budget for the maintenance of private unadopted roads to zero for year 2011/12.

Our investigation considered Mr C's concerns and confirmed that the council does not have a duty to maintain these private roads in terms of their responsibilities under the Roads (Scotland) Act 1984. We also took the view that, although a policy statement was produced in 1988 detailing how any budget for maintenance of unadopted roads would be distributed, the council were entitled to make decisions in terms of their overall budget. They were, therefore, within their rights in deciding to reduce this maintenance budget to zero.
 

Summary
Mr C complained about the council's handling of a claimed right of way. Mr C considered that the route in question satisfied the criteria required to constitute it as a right of way. He accepted that the question of whether the route was in fact legally a right of way was for the courts and not for our office. However, he complained to us that the council failed to follow the correct process leading up to the decision in 2006 that the route was not a right of way.

Our investigation found that while the council had been unable to provide all the information considered when the original decision was taken in 2006 they had more recently considered the matter in response to Mr C's representations. We found that they had confirmed their position on the claimed right of way and had explained the reasons for their decision. We did not uphold his complaint.

Summary
Mr C bought a house in a small rural development of five houses. The property company that built the development used part of an adjoining field to store containers and building equipment. After the last of the residents moved in (in autumn 2009) they pursued with the council the unsightliness of the storage area. The council served an enforcement notice giving the company the minimum 28 days to stop using the site as a builders' yard and to remove all containers, building materials, plant and machinery.

The company appealed to Scottish Ministers. They dismissed the appeal but gave the company six months to comply. That period ended in December 2010. The council continued to pursue with the company the removal of remaining items. Mr C took his complaint back to the council and by the summer of 2011 the last of the items had been removed. Against that background, the Procurator Fiscal indicated that he would take no action against the company. As the council had continued to pursue the matter throughout the period to a successful conclusion, our investigation did not uphold Mr C's complaint that the council failed to ensure that the site was cleared to an agreed level in a timely manner.

Summary
Mr C complained that for nine years he made numerous phone calls to the council's roads department about protecting his house from council waste trucks and heavy goods vehicles, which were mounting the pavement in front of his house. Mr C said he suggested that the council erect bollards to prevent this from happening but the roads department refused to do this as they felt that bollards would block the pavement for pedestrians. Mr C said the council failed to ensure that the pavement outside his home was safe or to ensure that his house was not being damaged by vibrations from vehicles bumping off the kerb.

Mr C said that in the council's final response to his complaint, they apologised for failings in dealing with his case and agreed to change the route used by council waste vehicles so that they would not mount the pavement outside Mr C's home. Mr C said that on receiving the letter, he contacted the council to ask what they were going to do about non council vehicles mounting the pavement. Mr C said the council told him that the re-routing of council waste trucks was 'as far as they could go'.

When we investigated the complaint, the council explained that the behaviour of those driving non-council vehicles did not fall within their jurisdiction and was a matter for the police. As the evidence showed that the council had dealt with the matters that were within their control (by rerouting the council vehicles) we did not uphold Mr C's complaints. However, as the evidence showed that the council did not include Mr C's concerns about non-council vehicles in their investigation of his complaint and did not respond on this point, we made a recommendation about this.

Recommendation
We recommended that the council:
• apologise to Mr C for failing: i) to include non-council vehicles in their investigation of his complaint; and ii) to then explain to him in their decision letter that they had no control over such vehicles and that the matter was for the police.
 

Summary
Mr and Mrs C bought their house in early 2010. It was part of a small, new development. The neighbouring property was occupied in late 2010 and in October that year the neighbours made a planning application for a double garage and store. Mr and Mrs C objected to this development but the application was granted. As they believed there had been errors and omissions associated with the planning process, Mr and Mrs C made a formal complaint to the council.

In the meantime, the neighbours made a further planning application for alterations and for an extension. This, too, was subsequently approved by the council, subject to conditions. Mr and Mrs C continued to complain that the council failed properly to consider the applications.

When we investigated the complaint we asked one of our planning advisers to provide advice on the way in which the council considered the applications. Our adviser was satisfied that the council followed the relevant process and acted appropriately.

Summary
Mr C lives in a building, part of which had previously been converted to shop premises. Agents for the owners of the shop had discussions with council officers and followed these up with an application for planning consent to extend the premises to the front and side. Changes in practice related to the Planning etc Scotland Act 2006 meant that it was the council's responsibility to have notified six parties, including Mr C, about the planning application. Mr C did not receive notification and the application was approved by officers under delegated powers. When work started, Mr C contacted his solicitors to make a complaint.

The solicitors made three complaints on behalf of Mr C. They complained that the council had: failed in their duty to carry out neighbour notification in respect of the application, failed to properly evaluate parking at the site as part of their consideration of the application, and refused to take appropriate action on complaints about noise nuisance. The solicitors said that Mr C had been disadvantaged as a result of not being notified and in the alleged lack of consideration given to material planning issues, most notably parking. They obtained affidavits (statements) from four other residents, all of whom said that they too had not received neighbour notification.

Following the advice of our planning adviser, we decided not to uphold these complaints. On the first complaint, although five parties claimed they had not been notified, the council's records indicated that the notifications were sent. We took the view that the council's duty did not extend to confirming or tracking receipt of these. On the second complaint, the issue of parking had clearly been considered, both before the application was made and as part of the assessment of the application. On the third complaint the alleged noise nuisance had been appropriately investigated by environmental officers.

Summary
Mr and Mrs C purchased their council house under the right to buy scheme. At that time, they were aware they had outstanding council tax arrears. They believed that, as part of the sale, their solicitor had paid the arrears. Two years after the sale, they received a letter from the council telling them that the arrears were still outstanding.

They complained that the council had made a procedural error because the finance department had not made the legal services department aware of these arrears and so this was not included in the statement provided to Mr and Mrs C's solicitors at the time of the sale. As part of the local complaints process, we found that the council had already acknowledged and apologised for a procedural error in processing the statement. Therefore, we upheld the complaint.

We gave careful consideration to whether we needed to make any recommendations to the council as a result of upholding the complaint. The council had, however, apologised and had also agreed to delay taking action to collect the outstanding debt. We noted that Mr and Mrs C (or their solicitor, on their behalf) should have taken steps at the time of the sale to ensure that the debt had been paid. We considered that there was nothing more that we could reasonably ask the council to do because, regardless of the error, Mr and Mrs C still owed them the money.