Local Government

Summary
Mr C complained that the council unreasonably failed to give him the correct information on how to appeal to the Sheriff Court. He said that this resulted in his appeal against a notice under Section 13 of the Roads (Scotland) Act 1984 not being heard.

Mr C lived on an estate of houses constructed before legislation (introduced in the 1980s) required a developer to lodge a road security bond. The developer at the time did not apply to the roads authority to have the roads and footpaths of the estate adopted and maintained at public expense. The residents association (of which Mr C was not a member) pursued the matter of adoption with the council. Mr C informed the council that, purely based on his own financial resources, he would be unable to support the adoption of his road. A majority of residents, however, voted for the adoption.

A Section 13 notice was issued by the council under the Roads (Scotland) Act 1984. (A Section 13 Notice requires the owners of any land fronting or abutting a road to make up that road to the required standard.) This notice said that if the majority of households which fronted the road agreed to the road being adopted, the council would carry out the maintenance work on the residents' behalf and recover the costs.

A second letter was issued the same day advising residents of the right of appeal against the notice to the local Sheriff Court. It said that they should do so within 28 days, and that if they wished to do so or were in any doubt as to the consequences of the notice then they should consult a solicitor immediately. Mr C said that he was given misleading information in a telephone conversation with an officer of the council that his right of appeal could be made in letter form to the sheriff clerk. Mr C said that he wrote to the sheriff clerk, but did not retain a copy of the letter. The sheriff clerk did not respond and, when several months later, Mr C contacted the sheriff clerk's office he was told that they had not received his letter. The evidence we saw about Mr C's telephone conversation with the officer from the council suggested that the officer was not acquainted with this particular appeals procedure, but sourced the address of the sheriff clerk from a colleague in the council's legal services department and provided it to Mr C.

We found that the written advice in the council's letters was unequivocal and correct. It was unfortunate that Mr C understood the oral information given in his telephone conversation with the officer from the council to contradict those letters, persuading him that a letter to the sheriff clerk would suffice as a valid submission of an appeal against the Section 13 notice. On balance, and after full consideration of the matter, we did not uphold Mr C's complaint that he was misled or that he lost his right of appeal in consequence.

Summary
Ms C complained that the council failed to take action to stop her neighbour from paving a grass service strip which formed part of the road verge. This strip lay between the homes of Ms C and her neighbour. Ms C pointed out that the title deeds to the properties in the estate prevent residents from paving these areas.

The council explained to Ms C that, from a roads authority point of view, the works carried out were of a reasonable standard and would not prevent access to services. As a result they were of the view that they had no responsibility to require the neighbour to removed the paved area and reinstate the grass. The council explained that this was a private legal matter.

In our investigation, we reviewed the roads legislation and design guidance and satisfied ourselves that the council were correct in their view and that they did not have any additional responsibility to require the neighbour to reinstate the grass. We also agreed that this was a private legal matter.

Summary
Ms C complained that the council evicted a tenant following investigations into allegations of antisocial behaviour and then some time later allowed the tenant to return to the property. Ms C said that she received no explanation from the council about why this happened.

The council told Ms C that they had not evicted their tenant but had taken action against her in connection with non-occupancy of the property. When we investigated this complaint, they explained to us that they had put in place a number of measures in an attempt to address the antisocial behaviour but that they were limited as to the information they could provide to Ms C and her neighbours.

We explained to Ms C that for reasons of confidentiality we could not provide her with all the details the council had given us. After considering the evidence, however, we were satisfied that the neighbour was not evicted and that the explanation provided by the council for the actions they had taken was appropriate.

Summary
Mr C submitted a medical assessment form for priority housing to the council. He explained that the property where he was living was unsuitable for his daughter's complex health needs. Just under a month later, Mr C was told that the medical adviser had determined that an award of Serious Medical Need priority was appropriate for their situation. Mr C appealed this decision some three weeks later. The council upheld the appeal and awarded Mr C Urgent Medical Need priority, but not until over four months after he submitted his initial appeal.

Mr C complained about the delay in the council reaching their initial decision on his application and also of the delays in notifying him of the outcome to the stage one and two appeals he made. Mr C also complained about the council's failure to provide him with adequate information about how the initial decision could be appealed; the lack of reasoning given by the council to initially award him Serious Medical Need; and the lack of explanation given by the medical adviser in not overturning this decision after reviewing his stage one appeal. Mr C further complained that the council failed to backdate the Urgent Medical Need award to the date of his original application.

We upheld most of Mr C's complaints. Our investigation found that, although the council gave justifiable reasons for the delay in dealing with the stage one appeal, there had been excessive and unreasonable delay in dealing with the stage two appeal. We did not consider that the council failed to provide Mr C with adequate information about appealing the initial decision. However, we found that they had not given clear and detailed reasons for initially awarding Serious Medical Need, nor had the medical adviser explained the reason for not overturning this decision after reviewing the stage one appeal. In addition, the council had initially backdated the Urgent Medical Need award to the date which the stage two appeal had been received instead of the date the original application had been submitted.

The council apologised to Mr C for the delay in assessing his medical appeal and are undertaking a review of their medical assessment process. They also met with the relevant medical adviser to ensure sufficient reasoning is provided to applicants on the outcome of medical assessments. In addition, the council backdated the Urgent Medical Need award to the date the original application was submitted. As the council have taken appropriate action to resolve the problems identified, we did not find it necessary to make any recommendations.

Summary
Mr C's daughter was taking music lessons at school. When she started, the lessons were free but, unknown to Mr C, the council had already decided that they would begin to charge for them at the start of the next school year.

Mr C complained that the council unreasonably failed to tell him that in future there would be a charge, which he could not afford, and said that he was out of pocket as he had bought his daughter an instrument and sheet music. He said that he would not have done that if he had known that the council had already decided to start charging.

He also complained that the council failed to consider the issue of inclusive education in their impact assessment on a proposed efficiency savings policy (which included the introduction of these charges).

Our investigation found that the council did not tell parents about the charges until finalising the administrative and income collection processes for them, some four months after taking the decision. We upheld Mr C's complaint as we found it unreasonable that the council did not tell parents who applied for free music tuition in the preceding months that a charge would apply from the start of the new school year. We considered whether we should recommend that they recompense Mr C for the cost of the instrument and music, but decided that they should not, as other alternatives were available, and the decision to buy the items was clearly his choice.

On inclusive education, we considered that the council's impact assessment took account of equalities legislation and community relations. The council explained that there is normally a charge for music tuition for pupils who are not studying for Scottish Qualifications Authority (SQA) music qualifications. Mr C's daughter was not studying for such a qualification. Although, therefore, Mr C felt that his daughter was excluded on ability to pay, there was in fact no requirement for the council to provide free tuition outwith the SQA qualification.

Summary
Mr C's complaint concerned his late father's headstone in the council's cemetery. A team from the council had inspected the headstone and decided that it was unstable. The council attached a sticker to the stone to indicate that it needed repair. Mr C complained about the testing procedure and about the conditions the council sought to impose upon him in carrying out the repair work. He was dissatisfied with their response and complained to us.

Our investigation found that burial ground operators should have systems in place to control risks to visitors and other members of the public. The approach set out in the guidance involves the periodic assessment of memorials as part of a planned programme including a visual check, a hand test and more detailed inspections where required. The guidance said that appropriate precautions can then be taken to manage the risk to the public. We found that the council had in fact followed appropriate procedures.

Summary
Mr C complained that the council had unreasonably failed to adopt (take over responsibility for) land behind his property a number of years ago, and take over the maintenance of the land. Mr C felt this had been a mistake at the time by the council and the developer of the estate. The council had been carrying out maintenance of the area of land subject to the complaint for a number of years and Mr C was dissatisfied when the council decided to withdraw this maintenance. He also complained about the council's handling of his representations.

During our investigation we found no evidence that the council were required to adopt open space in private developments for future maintenance purposes. Also in this case, we found no evidence that the land had been transferred to the council and as a result the land had not been adopted by the council. The council had been carrying out maintenance of the land, but on a voluntary basis, and they were under no obligation to either continue to maintain, or to acquire, the land.

We did find evidence of fault in the handling of Mr C's representations. The council had, however, already taken action to reduce the time taken to respond in situations such as this (where there were a number of council services involved) and were carrying out a review of their complaints handling procedure. We took this into account, and that they had already apologised to Mr C. We had no recommendations to make.

Summary
Mr C complained that the council failed to provide him with an appropriate valuation for a servitude right (a right that a person has to use or enjoy the property of another person) for a plot of land he sold for development. He was concerned that the council did not base their valuation for this on the price he sold the land for, rather than the valuation they obtained.

We found that the council had obtained an independent valuation for the plot of land and based the price for the deed of servitude on this value. Although the valuation obtained by the council was higher than that achieved by the sale, as the council was required to obtain best value for their assets, we found their actions were appropriate. For this reason we did not uphold the complaint.

Summary
Since 2007 Mr C has run a concrete business from a yard owned by his brother. In 2006 his brother objected to a planning application for four houses on a site adjoining the yard. The application was refused but was granted conditional consent on appeal and the housing development was begun. In 2008 Mr C placed a cement silo in the yard. The occupant of the house nearest to the yard told the council about this. The council inspected the site and asked Mr C to apply for planning consent, which he did. However, it was refused. The council then served an enforcement notice on Mr C telling him to remove the silo, but neglected to serve the notice on Mr C's brother.

Mr C appealed against the refusal of planning consent and the enforcement notice, but his appeals were dismissed. Mr C then instructed a planning consultant, who pointed out that the enforcement notice had not been served on Mr C's brother, and was successful in having the decision notice quashed in the Court of Session. A possibility remained that the council could re-serve the enforcement notice. However, after eighteen months of correspondence with Mr C's consultant on whether planning consent for the silo was actually needed, the council said that they did not consider that pursuit of enforcement action was in the public interest.

Mr C complained that the council handled the planning application for the houses inadequately and that it was inappropriate for them to have taken enforcement action. We did not uphold the complaint in respect of the residential application. We did, however, uphold the second complaint. While we did not find it inappropriate for the council to exercise their discretion, firstly to take enforcement action and then, more than two years later, to decide not to, we found that the processing of the application was flawed as the council did not follow a robust and correct process.

Recommendations
We recommended that the council:
• apologise to Mr C for the failure to ensure that the enforcement notice was properly served; and
• expedite any claim that Mr C decides to submit in the light of this decision.

Summary
Mr C complained that the council granted planning consent for a house on land next to his home. He stated that when the building began it was found that the new property had been built 1.4 metres closer to his property than had been approved. This raised concerns about overlooking from the upper windows of the new house into the lower windows of Mr C's property. To address this concern, one of two windows on the elevation facing Mr C's property was removed and a retrospective planning application was granted.

Mr C raised concerns that the overlooking of his property from the remaining window had not been reasonably acknowledged or addressed in the council's revised report to the planning committee. He complained that the report was misleading because it did not reasonably acknowledge the council's guidance about the recommended distances between windows at the relevant angles to each other. In their response, the council told him that they were satisfied the report was not misleading.

Mr C also complained that the council's responses to him were inaccurate as they said that a new property had been built further from Mr C's property than the plans approved, and that they had wrongly stated in another letter that the lane between the two properties was a public road.

We took advice from one of our planning advisers, who considered the relevant policies and guidance. This included the council's own relevant supplementary planning guidance, which gives the council and its officers a significant degree of discretion in applying these standards. The council followed the decision-making process correctly and the developer's action complied with the council's request. As the correct procedures were followed, we cannot question the merits of the revised planning decision.

Our adviser said that he did not find the report misleading and found no evidence of inaccurate dimensions (or descriptions) in it. He said the dimensions outlined in the council's letter to Mr C also appear to be correct, and that the angle of the window involved seemed to have been the subject of broad agreement between Mr C and the council. Our adviser saw no reason to believe that overall the council acted in an unreasonable manner in responding to Mr C's concerns. Although Mr C did not agree with their assessment, we found that he was not unfairly treated.