Local Government

Summary

Mr C submitted a housing application to the council, which was refused. Mr C complained that the council responded to his request unreasonably. The council said that allowing Mr C's request would have meant that the housing waiting list was effectively bypassed, and that there was a high demand in that area for the type of housing Mr C had requested.

We reviewed the relevant information and legislation. We found that the housing legislation gives the council discretion to consider what are reasonable grounds for refusing an application. It also allows for the council to refuse permission due to others waiting for housing who may have a greater need. We found that the explanation provided by the council was in line with the council's policies and with housing legislation. We did not uphold the complaint.

Summary

Mr C raised a number of concerns about the council's handling of a planning application. In particular that they failed to ensure a public consultation was carried out to a certain standard, they failed to describe the development appropriately, there was a flaw in a report, they had breached a condition of planning permission and that they failed to act when notified of wilful destruction of wildlife. Mr C also complained that the council inaccurately described their internal complaints procedure as independent.

We took independent advice from a planning adviser. In all instances, we considered that the council had acted reasonably and appropriately. We did not uphold any of Mr C's complaints. However, we did note that in reference to the public consultation, there were inconsistencies in the terminology used to describe the proposed development and the pre-application advert could have been clearer. We made a recommendation to the council in light of this finding.

Recommendations

What we said should change to put things right in future:

• Pre-application descriptions and materials should be clear and materials used at consultation events should be obtained by the council to ensure the consultation is appropriate.

Summary

Mr C complained about construction site noise at a development near to his property. In particular, that there was a lack of notification about out-of-hours noisy works, the necessity of working so late and the lack of alternative/mitigating measures used by the developer, and noisy work being carried out before 8.00am or outwith recommended times at weekends. He also asked the council to consider his complaint within the context of the statutory noise nuisance legislation contained in the Environmental Protection Act (the EPA).

The council had stated that there was not a statutory obligation to notify residents of out-of-hours noisy work but that it was good practice for the developer to do this. They highlighted that they had asked the developer to provide notifications to Mr C's address after he originally did not receive one. The council also stated that they had provided consent for out-of-hours noisy work to take pace. In addition to this, they discussed alternative/mitigating measures with the developer but it was decided that these would not be practical at this particular site. Finally, the council advised that the Control of Pollution Act 1974 (the COPA) applies to construction site noise and it is not appropriate to use provisions under the EPA in cases like this. Mr C was unhappy with this response and brought his complaint to us.

We found the council's explanation for why they did not consider the noise complaints under the EPA to be reasonable. We did not consider that the EPA could not apply to construction site noise but we accepted the council's reasoning for this. We also considered the actions taken by the council were reasonable and in line with their obligations. Therefore, we did not uphold Mr C's complaint.

Summary

Mr C raised a number of concerns about the council's handling of his planning application.

Firstly, he complained that the council granted and then withdrew planning permission. The council had acknowledged that they had made an error when issuing his listed building consent, by using the template for planning consent rather than the correct listed buildings consent template. They were of the view that this was an administrative error and that, as such, the planning consent had not been legally granted. We were critical that the council had issued a decision on the wrong template, and we highlighted to the council that this could give the impression that plannng consent had been granted. As a result of this failure, and the failure to promptly and clearly clarify why the mistake was made and what would be done to correct the error, we upheld this aspect of the complaint.

Secondly, Mr C raised concern that the council unreasonably disputed that his planning application included an access through a wall into a council car park. We took independent planning advice and concluded that the council had not disputed that access arrangements were included in the application. We did not uphold this aspect of the complaint.

Lastly, Mr C complained that the council unreasonably withdrew permission for him to form the access in the wall, despite having granted others access. He said that the council failed to take account of information he provided them with, which he considers proves his right of access. We were satisfied that the council had taken Mr C's evidence into account. Who has title or right of access is not something that we can determine, and this issue would need to be pursued through legal channels. We did not uphold this aspect of the complaint.

Recommendations

What we asked the organisation to do in this case:

• Write to Mr C to apologise for failing to promptly notice the error regarding the template, which gave the impression that planning consent had been granted. Also apologise for failing to provide Mr C with a reasonable explanation for what happened, and why, and for failing to provide an appropriate apology for their errors at that time. The apology should meet the standards set out in the SPSO guidelines on apology available at https://www.spso.org.uk/leaflets-and-guidance.

What we said should change to put things right in future:

• The public should be confident that when a formal notice is issued by the council, the notice is correct and can be relied upon. Any incorrectly issued notices should be identified promptly and steps should be taken to put right any errors, an investigation should be carried out in order to identify why the errors occurred and steps should be taken to ensure that the errors will not re-occur.

Summary

Mrs C submitted a request to withdraw her children from primary school with the intention of home educating them. Around two weeks after Mrs C submitted her request, an incident occurred with one of her children and a playground assistant which Mrs C reported to the police. Following this, a concern was raised about Mrs C's wish to home educate her children. A referral was made to the Children's Reporter (CR) and as a result, consent to withdraw the children from the school roll was withheld for some six months. The CR concluded that grounds for referral were not met and consent to withdraw the children from school to home educate them was eventually granted.

Mrs C complained that the depute head teacher failed to follow the appropriate policy and procedures in respect of the recording of physical intervention, after the incident involving the playground assistant. The council's policy on physical intervention states that this should be used only as a last resort when all other strategies have been exhausted. It may be used to de-escalate or prevent a violent or potentially violent situation but must not be used to enforce discipline or compliance. We found that the use of physical intervention was not justified in terms of the policy, and the council should have recorded the incident. We upheld this aspect of Mrs C's complaint.

Mrs C also complained about the referral to the CR. She was referred on care and protection grounds, namely that her children were absent from school without reasonable excuse. Mrs C said that the council pursued non-attendance even though national guidance states that in most cases it would be inappropriate to initiate or pursue non-attendance procedures in respect of a child awaiting consent to be withdrawn from school. It was unclear from the evidence whether the referral to the CR came from police or the council (as both were involved), but there was evidence that the council encouraged the police to make a referral on the grounds of the children being absent from school without reasonable excuse, despite what the guidance said in this regard. The council were aware of Mrs C's reasons for keeping the children away from school after the incident with the playground assistant. We considered that the council's referral to the CR (or their involvement in the referral) was unreasonable given that it was made in the knowledge that Mrs C had a legitimate reason for the children not attending school. We upheld this aspect of Mrs C's complaint.

Recommendations

What we asked the organisation to do in this case:

• Apologise to Mrs C for failing to follow their policy in respect of the use of physical intervention, and in particular for failing to record the incident. The apology should meet the standards set out in the SPSO's Guidance on Apology https://www.spso.org.uk/leaflets-and-guidance.
• Apologise to Mrs C for their role in the referral to the CR, given she had a reasonable excuse for the children not attending school because she intended to home educate them, and there were no child protection concerns. The apology should meet the standards set out in the SPSO's Guidance on Apology https://www.spso.org.uk/leaflets-and-guidance.

What we said should change to put things right in future:

• Staff at the school should understand the policy and know reporting requirements in relation to the use of physical intervention and restraint.
• The council should have a working knowledge of the terms of their policy in relation to home education. They should be clear about the procedures in place for sharing information about families.

Summary

Mr C complained about the council's response to his report of a breach of planning control. He also complained that the council failed to respond reasonably to his complaint.

We took independent advice from a planning adviser. We found that the council had provided a reasonable explanation about the actions they had taken in response to the alleged breach of planning. The council responded to the alleged breach within the appropriate timescales and had discretion to consider what the most appropriate response was. We did not uphold this part of Mr C's complaint.

Regarding complaints handling, we did find that the council's response to Mr C's complaint was outwith timescales. However, the response was thorough and provided a clear explanation of the actions taken. On balance, we did not uphold this aspect of the complaint.

Summary

Ms C complained that the council had failed to respond adequately to complaints about an unauthorised traveller site in her area. Ms C also said that the council's complaint response was inaccurate and that the council had lied about taking eviction proceedings against the travellers.

We found the council had acted in line with their policies and that there were not grounds for acting to move the travellers on. When the unauthorised site was causing a public nuisance, we found that the council did begin proceedings. We also found that the council's complaint response was not clearly worded, but that it was not inaccurate. We did not uphold Ms C's complaints.

Summary

Mr C complained that the council had not taken action against their tenants who he suspected were operating a business from the property, in contravention of the tenancy agreement. The council responded noting that they had carried out visits to the tenant's property and, whilst they had concerns, there was not sufficient evidence available with respect to the allegations regarding a business. Mr C was not satisfied with the response and brought his complaint to our office.

We found that the council had taken steps to investigate concerns about the activities of the tenants. This included liaising with neighbours, Police Scotland, Environmental Services and Trading Standards with respect to the activities of the tenant. The council followed up on concerns with the tenant, issuing formal warnings where they considered it was appropriate. They chose to manage the situation with the tenants, but also continued to act on concerns by neighbours. Whilst we considered there was some delay in the council concluding their investigations, we considered that, given the nature of the investigations required, the delay was not unreasonable. We concluded that the council reasonably followed their processes and we did not uphold the complaint.

Summary

Mr C complained about the council's handling of a planning application. He complained that the council had not ensured that there was accurate information to determine the application, that they had not considered the appropriate landscape policy, that they did not require additional public consultation after a change and did not ensure that the applicant adhered to planning conditions.

We took independent advice from a planning adviser. We found that the council had accurate information to determine the application and had considered the appropriate landscape policy. Councils can exercise their own judgement when deciding whether additional public consultation is required. The council also have discretion on how to respond to reports of breach of planning control. We found that the council provided a clear explanation of their actions in their complaint response. We did not uphold Mr C's complaints.

Summary

Mrs C owns a property which is adjacent to a park owned by a community trust. A number of years ago the park authority granted permission for an extension to the park. Mrs C complained to the park authority about the development, as she believed the park authority should have required the community trust to apply for planning permission for the new play equipment as she felt the new play equipment was situated too close to her boundary and obscured the view from her property. In their response to her complaint the park authority said that, as the permission was for the extension of an existing playpark, planning permission was not required.

Mrs C complained to us that the park authority unreasonably failed to require a planning application for the new playpark facilities. We took independent advice from a planning adviser who noted that the planning consent from when the park authority had originally granted permission for the extension had lapsed. Therfore, we considered whether the park authority acted reasonably in deciding not to require the community trust to apply for permission again. We found evidence that the park authority had made a considered and proportionate decision regarding whether to take enforcement action. We did not uphold the complaint.