Local Government

Summary
Mr C complained to us about the way the council handled a planning application for a development in the rear garden of a hotel next to his mother (Mrs A)'s property.  Mr C raised a number of concerns about the handling of the matter by the council's planning service including issues around neighbour notification; the description of the proposed development; the need for a design statement (required for some proposed developments within conservation areas, which Mr C said applied in this case); inaccuracies in the submitted plans; and considerations about environmental health, potential noise and light pollution, and potential daylight and sunlight restrictions caused by the proposed development.  He also complained that representations from the local preservation trust objecting to the proposal had been disregarded, and that the council made their decision before the statutory deadline given to the community council to respond to the planning application had passed.  In addition, Mr C complained that the structure that was built was different to that for which permission was given by the council.

We took independent planning advice on this complaint.  Although we found that in some cases, the council's actions had been reasonable or had been decisions that they were entitled to take in the course of their consideration of the development, there were a number of aspects to their handling of the matter that we were critical of.

We found that the council should have sought to change the applicant's description of the structure, as it did not accurately reflect the permission being sought and may have misled interested parties; they acted unreasonably in not requiring a design statement to be submitted with the application, which my planning adviser told me had major consequences for the assessment of the application; the council delayed in logging an objection received and the handling report stated that no representations had been received.  This was a serious omission which also was consequential to the way in which the application was subsequently handled. We found that the council failed to complete a daylight and sunlight assessment; the development was not properly assessed for its impact on the conservation area that applied to the location; and the decision was made prior to the end of the time allocated for statutory consultation with the community council.

In relation to Mr C's complaint that the final structure differed from what was applied for, my adviser told me that there is no specific requirement on the council in relation to how much an application can vary: this is for them to decide.  However, in this case, the council failed to appropriately log the objection made, which had a knock-on effect in relation to the council's decision to treat some of the variations as minor so, on balance, I upheld Mr C's complaint about this.

In view of all of these failings, based on the advice received from my adviser, I recommended that the council should consider taking enforcement action or discontinuance under section 71 of the Town and Country Planning (Scotland) Act 1997.  I also found that the council had failed to respond adequately when Mr C had raised his concerns with them.

Redress and recommendations
The Ombudsman recommends that the Council:

• (i)  review their procedures for ensuring that properly made representations on an application are registered without delay and then taken into account for the purposes of the assessment of the application;
• (ii)  consider whether a system to record on file all relevant details found on a site visit against a comprehensive, standard checklist should be introduced;
• (iii)  consider the options for enforcement and/or whether it would be appropriate to pursue a section 71 discontinuance or alteration order;
• (iv)  also take this matter into account when considering what action to take to remedy the failings we have identified in complaint (a) above.  This should include Mr C's comments about the roof panels;
• (v)  issue a written apology to Mr C for all of the failings identified in this report; and
• (vi)  make all of the officers involved in the handling of both the application and Mr C's complaint aware of our findings.

Overview
The complainant (Mr C) brought this complaint to the SPSO on 26 April 2013 on behalf of the owners of a nightclub, (Company A).  He complained that Company A had been forced to spend a large amount of money on sound proofing and noise reduction measures at the nightclub because South Ayrshire Council (the Council) unreasonably imposed a potentially unenforceable planning condition when they granted consent for a planning application in 2000.  The planning permission was for flats, to be built adjacent to the nightclub, which were built in 2001.  Mr C has raised concerns that the flats were built without appropriate sound attenuation measures in their construction and that this led to complaints from residents, which ultimately meant that Company A had to make substantial changes to their property to allow them to continue operating as a nightclub.

Specific complaint and conclusion
The complaint which has been investigated is that the Council unreasonably imposed a potentially unenforceable planning condition on planning application X (upheld).

Redress and recommendations
The Ombudsman recommends that the Council:

• cover the full cost of works which Company A have incurred in undertaking sound proofing and noise reduction measures at their nightclub, based on Company A providing appropriate invoices; and
• apologise to Company A for the time, effort and expense which has resulted from the Council's maladministration.

The Council have accepted the recommendations and will act on them accordingly.

Overview
The complainant (Mr C) raised a number of concerns about the way in which The Highland Council (the Council) dealt with an allegation of examination malpractice against his son (Mr A).  In particular, he said that they failed to follow Scottish Qualifications Authority (SQA) guidance.

Specific complaint and conclusions
The complaint which has been investigated is that the Council failed unreasonably to follow SQA guidance on candidate malpractice when dealing with an allegation involving Mr A (upheld).

Redress and recommendations
The Ombudsman recommends that the Council:

• provide Mr A with a letter of apology for the failures identified;
• make their secondary schools aware of the outcome of this complaint and of the importance of following available guidance; and
• liaise with SQA about the means by which they should document their procedures for dealing with such matters.

The Council have accepted the recommendations and will act on them accordingly.

Overview
The complainant (Mr C) raised concerns that Aberdeenshire Council (the Council) failed to ensure that the developer of the site adjoining his property (the Developer) complied with the conditions of the planning consent.

Specific complaints and conclusions
The complaints which have been investigated are that the Council:

• (a) has unreasonably delayed to ensure that the Developer complies with the conditions of the planning consent (upheld); and
• (b) has failed to use appropriate (enforcement) action to ensure that the Developer complies with the conditions of the planning consent (upheld).

Redress and recommendations
The Ombudsman recommends that the Council:

• (i) provide details of how they are taking matters forward with the Developer (with timeline) now they acknowledge that a breach of condition has occurred;
• (ii) provide a copy of their review of internal communications between Development Management and Environmental Planning Teams;
• (iii) ensure that measures are taken to feedback the learning from this event to all staff (complaint a);
• (iv) ensure that measures are taken to feedback the learning from this event to all staff (complaint b); and
• (v) issue Mr C with a full apology for the failings identified in this complaint.

The Council have accepted the recommendations and will act on them accordingly, having already met recommendation (v).

Overview
The complainant (Mrs C) raised a number of concerns about the handling by East Ayrshire Council (the Council) of a planning application for a wind turbine development of 15 turbines near her home.

Specific complaints and conclusions
The complaints which have been investigated are that the Council:

• (a) did not reasonably assess the impact of the development prior to determining the application (upheld);
• (b) did not reasonably obtain and consider independent expert opinion prior to determining the application (upheld);
• (c) did not have a reasonable policy in respect of the handling of major planning applications (upheld); and
• (d) unreasonably reached an agreement with the applicants under section 75 of the Town and Country Planning (Scotland) Act 1997 before addressing the local residents' concerns (not upheld).

Redress and recommendations
The Ombudsman recommends that the Council:

• issue a written apology to Mrs C for:  the failure to adequately assess the impact of the development in relation to cumulative noise; the failure to obtain an independent report in relation to this prior to reaching a decision; and, the failure to provide adequate information in the planning report in relation to whether, in the event of a decision contrary to the recommendation, there was a significant departure from the development plan in the case of a major development application;
• refund the local residents for the cost of the report they commissioned from an acoustic consultant, subject to the production of relevant receipts; and
• take steps to ensure that there is clearer reference to relevant statutory procedures in committee reports on planning applications, particularly in relation to whether or not there is a significant departure from the development plan in the case of a major development application.

The Council have accepted the recommendations and will act on them accordingly.

Overview
The complainant (Mrs C) said that Glasgow City Council (the Council) had not adequately investigated her complaint, when she complained that the secondary school her daughter (Miss A) attended had failed to meet Miss A's additional support needs.

Specific complaint and conclusion
The complaint which has been investigated is that the Council did not respond adequately to Mrs C's complaints (upheld).

Redress and recommendations

The Ombudsman recommends that the Council:

• issue a written apology to Mrs C and Miss A for the failings identified in this investigation;
• review the Complaints Handling Procedure (Appendix Two: What is not a complaint) to ensure that complaints about a school failing to meet additional support needs are appropriately signposted to the Additional Support for Learning framework, rather than considered under the Complaints Handling Procedure;
• remind all relevant staff of the alternative dispute resolution avenue available for complaints about schools failing to meet additional support needs;
• remind all relevant staff of the Council's Complaints Handling Procedure on 'what to do when you receive a complaint for investigation', which includes the recommendation to clarify the complaint and the scope of the investigation with the complainant at an early stage;
• review processes and templates for stage two investigations, to ensure that staff are appropriately prompted to consider:  what the issues in dispute are; whether there are disputes about facts; and what evidence is required to resolve these; and
• review processes for capturing and reporting information from complaints, including:  the root cause of the complaint; and possible action to reduce the risk of recurrence  (consideration should be given to these issues regardless of whether a complaint is upheld).

The Council have accepted the recommendations and will act on them accordingly.

Overview
The complainant (Mr C) purchased a detached unlisted house (the House) in a conservation area in September 2003 and engaged in pre-planning application discussion with the City of Edinburgh Council (the Council).  The Council advised that, in principle, his proposal to demolish the House was acceptable.  Mr C informed his neighbours of his intention to seek the relevant planning consents.  They in turn suggested to Historic Scotland that the House should be listed.  The planning applications were submitted.  The Council issued a Building Preservation Notice (BPN) on 16 June 2004 and Historic Scotland responded by issuing a Category B listing on 30 June 2004.  Mr C decided to withdraw his applications prior to them being considered by the planning committee.

Specific complaints and conclusions
The complaints which have been investigated are that:

1. entry was made to Mr C's property by an officer of Historic Scotland without requisite consent (upheld);
2. Historic Scotland knowingly gave misleading, inaccurate and out of date information to the Council (upheld to the extent that Historic Scotland gave misleading and inaccurate information about what they had decided);
3. Historic Scotland colluded with the Council to enable the listing of his home (not upheld);
4. Historic Scotland failed to establish or follow correct procedures by listing the building immediately following service of the BPN (not upheld);
5. Historic Scotland were inept and incompetent in their production of the listing description of the property (upheld);
6. an officer from Historic Scotland who appeared on a national radio programme misled the listening public (no finding);
7. Historic Scotland neglected to inform Mr C, in their letter of 7 December 2004, of his rights and entitlement to come to the Ombudsman (not upheld);
8. the pre-planning application advice given to him by the Council was faulty (not upheld);
9. the Council's procedures in validating his planning application were faulty (not upheld);
10. the Council's planning officer's report to committee on the BPN was misleading, incomplete and biased (not upheld); and
11. the Council colluded with Historic Scotland (not upheld).

Redress and recommendations
The Ombudsman recommends that Historic Scotland apologise to Mr C for the failings identified in the report.  She commends Historic Scotland for changes they have made to their procedures for deciding on listing, but recommends that Historic Scotland review the events considered in this report and consider whether they should take further steps to ensure that their decision making and communication processes are clear.

Historic Scotland have accepted the recommendations and will act on them accordingly.

The Ombudsman has no recommendations in respect of the Council.

Overview
The complainant is a planning consultant.  His complaint to the Ombudsman concerned the handling by a committee (the Area Committee) of Dumfries and Galloway Council (the Council) of his clients' application (the Application) for planning consent for a dwelling house in a rural area.

Specific complaint and conclusion
The complaint which has been investigated is that there were shortcomings in the consideration of the Application by the Council's Area Committee (not upheld).

Redress and recommendations
The Ombudsman has no recommendations to make.

The complaint concerned The City of Edinburgh Council’s response, in December 2001, to an enquiry from the complainants’ architectural agents which failed to disclose a condition attached to an amended planning consent of twenty years earlier, that the terraced dwelling house in which they resided should not be extended without the prior written approval of the planning authority.