LOCAL GOVERNMENT OMBUDSMAN LINKS
Many people with good cause to complain make the mistake of complaining to the LGO, without realising the Ombudsman's role may be to stifle serious complaint, or slow responses sufficiently to cause a potential litigant to lose his window of opportunity for Judicial Review, etc.
In any event, if the Ombudsman deals with your case the best you can hope for is the Council receive a slap on the wrist. Just look at the insulting levels of compensation suggested. In addition, you can be sure the Councils concerned failed to report the findings of maladministration below to their Full Council via their Monitoring Officer, as required to do so by the Local Government & Housing Act 1989! Wealden District Council don't. Hence the members are not informed when their Council fouls up, as the Parliament intended for this safety net to do.
Obviously, litigation is always the last resort. However, with an estimated 24,000 serious criminal offences committed each year by planning officers, it is pointless making a complaint to the Ombudsman where he is unlikely to award significant damages to justify the effort in putting your complaint, where it is most often the case that the same amount of effort would suffice for a successful and substantial claim.
Don't forget, you may qualify for Legal Assistance and there is a strict 3 month time limit in which to lodge an application for leave for a Judicial review. This Labour Government is aware of the situation, but refuses to take action for fear the country will be swamped with claims against local authorities. We say that is not our problem! We say justice should be served whatever the cost to local authority - in the interests of the citizen.
Findings of maladministration and injustice
Cornwall County Council (01/B/7760) & Caradon District Council (01/B/11327)
Housing grants and building control
'Mrs Cove' (not her real name) was a disabled woman who owned her own cottage. On 1 September 1998 the County Council assessed her need for a ramp to assist her in gaining access to her home using her wheelchair, and submitted a recommendation to the District Council for a disabled facilities grant to fund the adaptation. The District Council had insufficient funds to provide a grant that year, but approved a grant on 11 October 1999. The ramp as built was too steep and failed to meet the County Council's specified gradient of 1:12. As a result, from 1999 Mrs Cove was unable to gain access to or egress from her home using her wheelchair.
The Ombudsman found maladministration on the part of both Councils, causing injustice to MrsCove. He recommended that:
a) each Council made Mrs Cove an ex gratia payment of £750;
b)the County Council should carry out a full assessment of Mrs Cove's present needs. The two Councils should then at their joint expense provide a satisfactory ramp to the property; and
c) both Councils should review their liaison arrangements in respect of disabled facilities grants and related matters.
20 January 2003
Restormel Borough Council (01/B/10755)
A director of a house building company complained that the Council delayed drafting a Section 106 agreement, a legal agreement the Council required as a condition of its approval of the company's planning application for a housing development.
Until the company and the Council had completed the agreement, the Council would not issue a decision notice approving the planning application. Until the Council issued that decision notice, the company could not legally complete the sale of any houses on the site.
The Ombudsman found that delay by the Council in drafting and approving the terms of the agreement was responsible for 20 weeks' delay, causing the company to incur additional costs and cash flow difficulties.
The Ombudsman found maladministration causing injustice and recommended that the Council should pay the company of £16,250. In addition, the Council should conduct a full review of its systems and procedures to ensure all measures possible are taken to avoid a recurrence of such unacceptable delay.
3 December 2002
London Borough of Hackney (01/A/1794)
'Ms Fosse' (not her real name) complained on behalf of the management company of the flats where she lived, that the Council failed to consider properly a planning application for residential use of a building. Inadequate and misleading plans were submitted, which showed flank windows as existing which were not there. Planning permission was granted for the windows in the flank boundary wall of the building, facing directly across a small yard to windows in a neighbouring block of flats. The developer implemented a revised scheme, with fewer flank windows, which had been sent to building control but not passed on to planning. The windows were clear glazed.
Two years after the first complaints were made about the building works, the Council had still to secure what it considered to be an acceptable development.
The Ombudsman found the Council granted planning permission based on inadequate information and, if it had considered matters properly, it would have required the windows to be obscure glazed and fixed shut. It had also delayed unreasonably in taking action and failed to keep residents informed about what has been happening. He recommended that the Council pay £500 compensation and, if it could not secure changes to the windows within a reasonable period, should compensate flat owners for any reduction in the value of their properties.
16 December 2002
Caradon District Council (01/B/15951-2)
Consideration/neighbour amenity & drainage
The occupiers of two properties adjacent to a recreation ground formerly used for agriculture complained that the Council failed to ensure that the planning applicant addressed the drainage problem created by development works. The surface water run-off dramatically increased in volume and rate, causing damage to the complainants' gardens and access road. They brought this problem to the attention of the Council before planning permission was granted. The Council first deferred the application, asking the applicant to submit a drainage report, but subsequently granted permission, relying on a land management regime to control the run-off. This was not professionally assessed before its adoption. The Council had the opportunity to reconsider its decision, when an expert report was brought to it attention, but failed to do so. It also failed to ensure that the approved landscaping scheme for the site was properly and promptly implemented.
The Ombudsman found maladministration causing injustice, and recommended that the Council should:
19 March 2003
Blackburn with Darwen Borough Council (01/C/12023)
Consideration/neighbour amenity & refuse collection/waste disposal
'Mr and Mrs Francis' (not their real names) complained that the Council permitted a developer to begin preparatory works upon a site without requiring details of such work first, which was a condition of the planning permission. Extensive earth works and tipping were subsequently carried out which had an adverse effect on Mr and Mrs Francis, who lived next to the site. The Ombudsman found that it was maladministration for the Council to allow work to start without determining the extent of such works. However, she also concluded that, once started, the developer went well beyond what the Council believed it had allowed. The developers permission was to create a golf course, whereas what was developed was a waste tip for which the Council had clearly given no agreement.
The Council subsequently took enforcement action and the developer was convicted and fined as a result.
The Ombudsman found maladministration causing injustice and recommended that the Council should seek to have the unlicensed waste removed from the site and pay £5,000 compensation to the complainants for their loss of amenity.
25 March 2003
Borough of Telford & Wrekin Council (02/B/4716)
'Mr Ash' (not his real name) lived next door to a grade II listed building. He complained about the Council's grant of planning permission for change of use of this building to a tearoom and shop. When the Council granted permission for class A3 (food) use of the premises it failed to ensure a suitable condition was imposed requiring the provision of fume extraction or ventilation equipment to control cooking odours as recommended by environmental health. As a result, Mr Ash and his family experienced greater impact from the use of the premises that they might otherwise have done.
The Ombudsman found maladministration causing injustice and recommendedthat the Council should pay MrAsh £500 and review liaison arrangements between its environmental health and planning departments to ensure that, as far as possible, the maladministration he identified did not recur.
31 March 2003
Torridge District Council (01/B/16675-6)
'Mrs Pomfret' and 'Mrs Quigley' (not their real names) complained about the Council's grant of planning permission for retention of a mobile home on agricultural land near their homes, contrary to its own policy and the recommendation of its officers. There were failures in the consideration of the application in that Members took into account the applicant's personal circumstances, which were not submitted as part of the planning application, and did not properly record the reasons for the grant of a second temporary permission. A Member of the Plans Committee was in breach of the National Code of Local Government Conduct in acting for the applicant during the consideration of the planning application. The complainants and their families could reasonably feel that the Council had not been even-handed when considering their objections to their neighbour's planning application.
The Ombudsman found maladministration causing injustice and recommended that the Council should make ex gratia payments of £500 to the complainants, and undertake to consider any further applications in accordance with all the relevant planning policy guidance.
27 May 2003
Teignbridge District Council (02/B/4048, 5945 & 6195)
A number of residents complained that there were faults in the way the Council dealt with a planning application for a new laundry building. They alleged that the application was inadequately publicised, that it was not reported accurately to the Planning Committee and that a condition required by the Committee, that further approval of the materials to be used on the building must be obtained, was omitted from the consent. They also complained that inadequate consideration had been given to landscaping the site.
The Ombudsman was satisfied that the publicity for the application complied with the statutory requirements and he finds no maladministration on this count. He found maladministration because the officer's report to Committee inaccurately described the appearance of the proposed building, but he concluded that Members were not misled because other information correctly portrayed the building. The Ombudsman also found that the Committee had required further details of materials to be used on the building to be submitted and approved, but no condition to this effect was imposed on the consent. This was maladministration. He was critical also of the Committee minute which was insufficiently precise. The Ombudsman accepted that, if the condition had been imposed, some mitigation of the building's impact might have been gained from a different landscaping scheme.
The Ombudsman did not find maladministration in the way the Council had approved a landscaping scheme for the site.
The Ombudsman found maladministration causing injustice, but he was satisfied that the considerable sum which had been spent by the Council on additional planting had substantially remedied the injustice suffered by the complainants. He recommended, in addition, that the Council made a payment of £500 to the Residents' Action Group to recognise the time, trouble and costs the Group had incurred since its foundation.
29 May 2003
Warrington Borough Council (01/C/12214 & 12307-9)
The complainants all lived in the immediate vicinity of a children's nursery for which the Council granted planning permission in 2001. They complained that the application was wrongly decided.They alleged that the planning case officer was biased in favour of the applicant and that, because of this, he took steps to ensure that the application could be decided by him under delegated powers.The complainants said they suffered noise and disturbance from the nursery, and that there was danger from increased traffic.
The investigation revealed that under the Council's delegation system the application would automatically have fallen to be decided by the Planning Committee if there had been objections from the Town Council. However, the planning case officer had telephoned the Town Clerk and suggested he should withdraw the Town Council's objections. The Town Clerk understood from the conversation that the Town Council's objections were the only ones received and that they were not valid on planning grounds, so he withdrew them. He told the Ombudsman that he would not have done so had he known there were other objections. The other objections included those from the complainants.
The Ombudsman concluded that the evidence of the case officer had been shown during the investigation to be unreliable. She therefore accepted the Town Clerk's evidence about his conversation with the case officer, and concluded that the failure by the Council to determine the planning application at Committee instead of under delegated powers was maladministration.
However, she found no evidence of an improper relationship between the developer and the case officer.
The Ombudsman had seen no evidence to suggest that planning permission would have been refused if the application had been determined by the Planning Committee. However, if the Environmental Health Officer had submitted a report (which he had failed to do) or spoken at a Committee meeting, she considered it was likely that the grant of planning permission would have included a tighter restriction on the children's outside play hours, in order to protect the amenity of neighbours of the nursery.
The Ombudsman found maladministration causing injustice. The Council agreed to apologise and to pay £200 compensation to those complainants living next to the nursery to compensate for their anxiety that, should the nursery not observe its voluntary agreement to restrict outside play hours, the amenity of neighbours would be adversely affected. The Ombudsman considered this to be a satisfactory remedy for the injustice.
17 July 2003
North Shropshire District Council (01/C/13963)
'Mr Taylor' (not his real name) complained that the Council unreasonably granted approval, against the advice of officers and not in accordance with the Local Plan, for the erection of 22 dwellings on the site of a garage near his property, having previously refused an application to build a smaller number of houses there. He suspected Members had been improperly influenced by the developer.
The Ombudsman found that the minutes of the relevant meetings did not record the reasons why approval was granted and did not address the objections made by Mr Taylor, nor did they state why Members felt they should grant approval against officer advice and outside Local Plan criteria. In addition, for the most part those reasons that were recorded were not material planning considerations. When interviewed, some Members disclosed that factors other than material planning considerations, such as the financial viability of the site for the developer, had influenced their decision making.
Members denied they had been influenced to change their decision because of lobbying by the developer. However, the vast majority of the Members had either met or spoken to him at some time between the original decision to refuse the application and the eventual decision to approve an application to build even more houses on the site than had originally been planned. The Ombudsman concluded on a balance of probability that the judgment of Members had been affected by lobbying by the developer but she found no evidence to suggest any improper relationship between the developer and councillors.
Members stated that there was a need for more low cost housing in their area. While the Ombudsman accepted that this was a relevant consideration, the flaws in the decision-making process were sufficiently serious as to constitute maladministration. However, the Ombudsman concluded that, whilst small lower-cost dwellings would have been approved for the site, the way the application had been administered caused an injustice to Mr Taylor as he lost the opportunity for a scheme with fewer houses to be considered.
The Ombudsman recommended that the Council should pay Mr Taylor £1,000 for lost opportunity and distress.
23 July 2003
West Dorset District Council (02/B/13675)
'Mr and Mrs Simpson' (not their real names) complained that the Council failed to consider properly their objections to a planning application for an extension and alterations to a neighbouring property. They also complained that the Council advised them wrongly about their legal rights and failed to inform them that they could complain to the Ombudsman.
Mr and Mrs Simpson objected to the application on a number of grounds, including overlooking exacerbated by a difference in ground levels. The case officer noted the existence of a substantial evergreen hedge on the boundary between the application site and the Simpsons' home, which he thought would be retained to screen between the properties. However, no condition was imposed to this effect, and the hedge was removed prior to the commencement of building work. In addition, the information on the planning file did not adequately record the considerations the planning officer took into account in granting planning permission under delegated powers.
When Mr and Mrs Simpson enquired about the possibility of challenging the planning decision and seeking compensation, they were advised that there was no such right, albeit later they were correctly advised that the legality of a decision could be challenged in court, but not the planning merits. In addition, when Mrs Simpson asked what remedy was available for those treated unfairly by the Council, she was not told of her right to complain to the Ombudsman although the Council's website and its complaints leaflet referred to the Local Government Ombudsman service.
The Ombudsman took the view that the complainants had suffered some loss of amenity which could have been avoided if the retention of the hedge had been conditioned. He found maladministration causing injustice to Mr and Mrs Simpson and recommended that Council should pay them £1,000, to assist them in taking remedial measures to mitigate the overlooking they now suffer and in recognition of their time and trouble in pursuing the complaint.
21 August 2003
Macclesfield Borough Council (02/C/9339)
Planning permission was given for a large detached house to be built to the rear of the complainant's home. The complainant had not been notified of the application and had therefore not been able to object to the development. She would have drawn the Council's attention to the fact that her home was not correctly shown on the plans and that the new house would be closer to her home than the Council's policy said it should be. These matters were not drawn to the attention of the Planning Committee, and Members, when interviewed, said they would have made a different decision had they had more accurate information.
The Ombudsman found that there was maladministration without which the decision would have been to refuse the application, and she concluded that the likely outcome would have been that the developer would have amended the application in such a way that the complainant's privacy would not have been so badly affected.
The Council agreed to provide appropriate screening. If agreement on screening could not be reached it would consider a financial settlement. The Ombudsman considered this a satisfactory remedy for the injustice.
28 August 2003
East Devon District Council (01/B/13584 et al)
Four couples and another resident complained that the Council failed to consider properly the effect of a proposed development on their amenity. The complainants alleged, in particular, that the Council failed to seek information about natural and proposed ground levels of the development site before determining the planning application and consequently, the height of the new houses close to their homes was considerably higher than had been envisaged.
The Ombudsman found maladministration causing injustice and recommended the Council to make a payment of £1,500 to each household for the failure to control the development properly and in recognition of their time and trouble in making the complaint.
28 August 2003
London Borough of Sutton
'Mr Beech' (not his real name) complained that the Council failed to take enforcement action over breaches of planning conditions relating to a neighbouring takeaway and land to the rear of his property. He complained that the ventilation duct of the takeaway was noisy and did not comply with the design approved by the Council. He also complained that, although the Council imposed a condition requiring the takeaway to close at 11 pm, it routinely opened after this time, and that he was disturbed by the noise. Finally, he complained that the land to the rear of his property was used to store heavy goods vehicles (HGVs), which woke him up by starting up early in the morning.
The Ombudsman criticised the arrangements the Council had put in place to investigate breaches of planning control. It had engaged an outside consultant and paid for approximately two-and-a-half days work per week, which was inadequate to deal with the Council's enforcement cases. As a result, the Council took little effective action. And although the Council had a procedure for dealing with enforcement complaints, it had not resourced the service sufficiently to comply with it.
The Ombudsman accepted that the land to the rear of MrBeech's property had a complex planning history over which the Council could not exercise planning control. He accepted that the noise from the ventilation duct did not amount to a statutory nuisance when assessed from Mr Beech's property, although there was a long-running planning breach. He found that the Council's failure to deal with the breaches of the hours of opening of the takeaway was maladministration which caused Mr Beech an injustice, particularly as a licensing officer had witnessed the breach and offered to make a witness statement, which the enforcement consultant did not follow up.
The Ombudsman found maladministration causing injustice and recommends that the Council should:
23 January 2003
South Cambridgeshire District Council (01/B/12389, 12437, 12439 & 12441) and
Cambridgeshire County Council (01/B/12390, 12438, 12440 & 12442)
Environmental health & enforcement
Residents of a village complained that both Councils failed, over a five year period, to deal with problems relating to noise, litter, and out of hours working from premises which are used for the storage and processing of waste paper and cardboard products. The complainants said that actions by the Councils to control activities on the site, by planning conditions and environmental health measures, have not been effective. They believed that this situation had arisen, in part, because of a lack of effective communication between the two Councils. The complainants said that, after five years and expenditure in excess of £1,500, they were still suffering nuisance from noise, site activity out of hours, and litter.
The Ombudsman found maladministration causing injustice by both Councils and, to remedy the injustice, recommended that they:
If no significant improvement in noise and/or litter nuisance can be brought about, then the Ombudsman recommended that:
4 September 2002
Winchester City Council (01/B/7750 & 15902)
Environmental health & enforcement
'Mr Mitchell', 'Mr Fowler' and 'Mr Owen' (not their real names) all lived close to a dog boarding kennels. MrMitchell complained on behalf of them all that the Council:
The complainants claimed that, as a result, they have had to endure intolerable levels of dog barking during the day and night.
The Ombudsman found maladministration causing injustice on the second part of the complaint, and recommended the Council to pay £500 each to Mr Mitchell, Mr Owen and Mr Fowler to compensate for the unnecessary noise nuisance they have endured, and for their time and trouble in pursuing their complaints.
4 September 2002
Rugby Borough Council (01/B/9227 & 10962)
Environmental health & enforcement
'Mr and Mrs Finch' (not their real names) complained that the Council failed to inform them adequately of its findings, over a number of years, that noise from a nearby motor cycle track was insufficient to amount to a statutory nuisance. This caused them to believe that the Council intended taking legal action against the site owners. The Council failed to take adequate steps to investigate whether there was a breach of planning control in respect of the site, causing Mrand Mrs Finch to suffer a loss of amenity and inconvenience over a period of at least two years
The Ombudsman found maladministration causing injustice and recommended the Council to:
a) pay Mr and Mrs Finch £2,000 for their loss of amenity over a period of two years;
b) pay Mr and Mrs Finch a further £250 for the time and trouble they have taken in pursuing their complaint;
c) review its previous decisions regarding possible legal action and consider whether future action should be taken to ensure that the owners of the site comply with the Certificate of Lawful Use; and
d) put in place procedures to secure liaison between departments when considering enforcement issues affecting both planning and environmental health departments.
7 October 2002
Kerrier District Council (01/B/3884, 7935-6, 12605 & 12624)
Five complaints were made about the Council's failure to take appropriate action to control unauthorised development at a boatyard, which dominated a small village. The development tookthe form of tipping and consolidating material to extend the area of land at the boatyard, and it affected a listed building and an ecologically sensitive river estuary. Other statutory agencies were involved at the site. A planning application to regularise the position was not complete until three years after the Council was first aware of the development. The application was called in by the Secretary of State, but subsequently withdrawn before an inquiry was held. The Council delayed in taking enforcement action.
Two of the complaints also concerned delay by the Council in investigating a report of an unauthorised building on the boundary of the boatyard, affecting the amenity of a neighbouring property.
Regarding the unauthorised tipping, the Ombudsman found maladministration causing injustice by the Council for:
The Ombudsman also found maladministration causing injustice by the Council for its delay in investigating the report of the unauthorised building.
To remedy the injustice to the complainants, the Ombudsman recommended that the Council should:
15 October 2002
Thurrock Council (01/A/4818 & 02/B/2740)
Enforcement and refuse collection/waste disposal
'Mrs Archer' and 'Mr Moss' (not their real names) had complained of smoke nuisance resulting from unauthorised burning of waste at the nearby 'Deal Farm'. The Council did not initially address the apparent breach of planning control. In 1998 the owner of Deal Farm made applications in respect of his unauthorised use of the site for a skip hire business and for waste transfer operations. While the Environment Agency was the body responsible for licensing waste transfer operations, it was reluctant to do so until the planning issues were resolved. The Council delayed in determining the applications. It sought to bring other matters into planning control by executing a legal agreement with the owner of Deal Farm, and the applications remained outstanding.
Environmental health officers, responding to complaints about the smoke, did not observe the effect on Mrs Archer and Mr Moss and could not therefore determine whether a statutory nuisance existed. Officers did not respond promptly to complaints out of hours and at weekends, although it was evident that problems frequently arose at these times. The Council believed that, given prevalent weather conditions and the apparent lack of complaints from more residents, the problem was unlikely to be severe and it decided to take no further action.
The Council did not visit Deal Farm in connection with either the alleged breaches of planning control or the complaints of smoke nuisance.
The Ombudsman found maladministration causing injustice and recommended that the Council:
30 October 2002
East Devon District Council (99/B/4333) and
Devon County Council (99/B/4332)
Enforcement and refuse collection/waste disposal
'Mr Howe' (not his real name) lived in a listed building in a small hamlet within an Area of Outstanding Natural Beauty. He complained that the County Council had failed to enforce the terms of planning consents granted to his neighbour, a farmer, allowing the importation of waste to raise land levels and the creation of a new access to the highway. He also complained that the District Council failed to secure compliance with the conditions of consents it granted, particularly those relating to landscaping and open storage.
The Ombudsman found that the pragmatic approach taken by the County Council was not inappropriate in the circumstances, and that it had secured measures which officers considered were acceptable. In respect of the District Council's actions, the Ombudsman found extensive delay in taking formal action to require compliance with planning conditions. As a result, Mr Howe suffered a loss of amenity for longer than he reasonably expected, and incurred additional professional costs in seeking to protect his interests.
The Ombudsman found no maladministration by the County Council. He found maladministration causing injustice by the District Council.
The Ombudsman recommended that the District Council should:
28 October 2002
London Borough of Enfield (01/A/11424)
'Ms X' (not her real name) complained to the Council in February 1999 about the actions of her neighbour in building an unauthorised extension. Although the Council began enforcement proceedings in July 1999, it was not until October 2002 that the extension was finally reduced in size (to comply with a planning permission which had been granted in March 2001).
The Council delayed unreasonably in pursuing the breach of planning control and failed to take decisive action to deal with the problem. As a result, Ms X had to endure the dominating effect of the extension on her home, and its use as an office.
The Ombudsman found that the Council's delay in dealing with this matter, and its failure to keep Ms X properly informed of the progress on her complaint, amounted to maladministration which caused Ms X injustice. The Ombudsman recommended that the Council pay Ms X £800 and reimburse the reasonable legal costs she incurred in pursuing her complaint with the Council.
19 February 2003
Isle of Wight Council (01/B/15370)
'Mr and Mrs Harold' (not their real names) raised concerns with the Council that their neighbour had damaged trees which they understood to be subject of a tree preservation order (TPO). The Council had not recently updated the relevant TPO and this limited its ability to take action. The Council did not make adequate records of conditions on site which made it difficult for it to determine the nature and extent of any damage which may have occurred subsequently. The Council did not properly follow its own procedure for assessing the need for further protection of trees on the site. The Council did not respond to later complaints of damage and, when additional TPOs were confirmed, some were not applied promptly, leaving trees unprotected for a further period.
The Ombudsman found maladministration causing injustice and recommends that the Council should:
19 March 2003
Taunton Deane Borough Council (01/B/18564 & 02/B/7706)
'Mr and Mrs Scott' and 'Mr Darwin' (not their real names) complained about planning issues connected with industrial development near their homes, and in particular the loss of amenity resulting from the felling of trees covered by a tree preservation order (TPO), and the failure to enforce planning conditions relating to landscaping.
The Council granted planning permission, subject to conditions, for industrial development on land near the complainants' homes. Mr and Mrs Scott believed that committee members were not given all the relevant information and that the development has blighted their home. The developer felled more trees which had been protected by a TPO than the Council's officer believed he had previously agreed. After some delay, the developer submitted new landscaping proposals and the Council consulted neighbours. The Council wanted the developer to reduce mounding on the site and provide a mix of tree sizes and types. The Council's officer reached an agreement with the developer. The Planning Committee resolved to approve the landscaping details. The complainants were concerned about the delay in planting new trees. Planting of the site took place on 22 February 2002. The Council apologised to Mr Darwin for the loss of some boundary trees but did not consider that payment of compensation to the complainants is justified.
The Ombudsman found maladministration causing injustice on the issue of the felling of trees, and recommended that the Council should pay £1,000 to Mr Darwin and £750 to Mr and Mrs Scott.
27 March 2003
St Helens Metropolitan Borough Council (02/C/1956-8)
Three residents complained that the Council failed to take enforcement action about a site next to their homes with the result that they suffered nuisance and inconvenience. The site was owned by travellers. Planning permission had been granted for a dormer bungalow subject to conditions. Residents had complained to the Council about caravans on the site, and that these were being lived in rather than stored. The Council failed to record complaints it received and the evidence it gathered about activity on the site systematically and routinely. It was also slow to explain its objectives and actions to local residents and to ask them if they were prepared to act as witnesses. It also failed to pursue a condition about a landscaping scheme and check the height of CCTV masts. Those failures were maladministration.
The Ombudsman was particularly concerned with this maladministration because similar failures were identified in her report into a separate complaint in November 2001. In its response to that report the Council said it would review its enforcement practices, but did not do so. The Ombudsman was pleased to say that the Council accepted that there were deficiencies in its processes and communications, and had now reviewed those procedures.
The site had now been sold and the occupants had moved out in December 2002.
The complainants were put to considerable time and trouble in pursuing their complaints and the Council agreed that each would be paid £250 in recognition of this.
The Ombudsman found maladministration and injustice, with the remedy agreed.
29 April 2003
Telford & Wrekin Borough Council (01/C/5017)
'Mr Lambeth' (not his real name) complained about the way the Council dealt with a planning application for a restaurant close to his and his wife's home, that it failed to ensure that the development was built in accordance with the planning consent and failed to enforce planning conditions. Mr Lambeth also complained that, since the restaurant commenced operations, the Council had failed to investigate and address allegations of statutory and other nuisance and had failed to ensure the restaurant operated in accordance with its planning consent.
Following her investigation, the Ombudsman concluded that, while the implications of planning policies for this development could have been explained more clearly to Members, they were well aware of the proximity of the proposed restaurant to MrLambeth's property. However, to have granted planning permission on the basis of an agreement that the developers would pay for double glazing in Mr Lambeth's property (an agreement made with the developers but which could not be enforced without the Lambeths' prior approval) was a recipe for conflict and had led to the current stalemate. The Council's failure, either to enforce this agreement or to conclude formally that it cannot do so because of the complainant's actions, was maladministration.
The Ombudsman concluded that the Council had responded properly and appropriately to the allegations of statutory nuisance from the site. However, she criticised the decision of the Council to approve the restaurant owners' application to operate a home delivery service, when this had the clear potential to undermine the effect of the limit on the restaurant's hours of operation which was imposed in the planning conditions. She considered that the Council had failed to enforce the planning conditions effectively, and that this failure was also maladministration.
The Ombudsman found maladministration causing injustice and recommended that the Council should give urgent consideration to taking enforcement action over the alleged breaches of conditions and, unless the Council could get the restaurant owners to pay for the cost of double glazing, the Council should pay MrLambeth £10,000 as a contribution towards its cost.
11 June 2003
Doncaster Metropolitan Borough Council (01/C/5509)
The complaint concerned an area of land encompassing a Site of Scientific Interest (SSI) and a Scheduled Ancient Monument (SAM). The complaint was made by a local naturalists' society which was interested in the preservation of local areas which support rare, or a wide range of, flora and fauna. The Society said that the Council failed to properly enforce a planning condition which required a scheme for the management and protection of part of the SSI and SAM. The Society was concerned that the Council's alleged lack of action had allowed an important habitat to be degraded with a resultant loss of animal and plant species.
The Ombudsman found that the site should have been afforded greater protection by a properly worded management plan, which the Council would have been under a duty to enforce. The absence of such a plan was maladministration. She recommended that the Council should try and ensure an adequate management plan for the relevant parts of the SSI and SAM could be put in place as a condition of the current planning application. The Council should also ensure that it undertook an ecological survey of the site by the end of June 2004.
18 June 2003
Breckland District Council (01/B/14125)
Enforcement and environmental health
'Mr Rose' (not his real name) made three complaints about the Council's actions in relation to a farm and vegetable processing plant at the side and rear of his house.
a) When considering enforcement action over the change of use of the field behind his house for the parking and turning of lorries, the planning enforcement officer did not formally consult the highway or environmental health department. This was maladministration. Mr Rose's main complaint about the use of the site concerned noise from lorries starting and turning in the early hours of the morning, but no advice was sought whether the bund proposed in the enforcement notice would alleviate his concerns. This was also maladministration. Now an enforcement notice had been complied with, the use of the site for parking and turning lorries at the level existing at the time of the notice was immune from further planning action. There was also a nine month delay by the Council in dealing with Mr Rose's complaint about the lorries, and this was also maladministration.
b) There was a five month lack of response to Mr Rose's initial noise complaint in September 1999 which prolonged the amount of time he had to suffer noise nuisance from cooling fans. Anoise nuisance was witnessed in June 2001 but stopped in December 2001 and has not recurred. The Ombudsman found maladministration but no injustice on this part of the complaint.
c) The Council did not inform Mr Rose whether water sprayed on the field next to him contained sewage or was hazardous to health. The Officer concerned had not witnessed an odour nuisance from the spray but had written to the Environment Agency to refer the complaint to them. The Ombudsman found no maladministration on this part of the complaint.
The Ombudsman found maladministration causing injustice and recommended that the Council:
19 June 2003
Lincolnshire County Council (02/C/5727, 12904 & 16642) and
Boston Borough Council (02/C/5729, 12902 & 16598)
Enforcement & environmental health
Three people complained against both Boston Borough Council and Lincolnshire County Council about the failure of both to take effective action against a waste transfer station which they say was operating in breach of its planning conditions and was the cause of smell, noise and dust. They complained in particular about the use of the waste transfer station during unsocial hours.
The Ombudsman found that the Borough Council had properly investigated whether there was a statutory nuisance, and concluded that there was not.
The Ombudsman found, however, that the County Council had failed to investigate the residents' complaints properly. It served a planning contravention notice on the site owner in November 2001 followed by a breach of conditions notice in January 2002, but then failed to follow up this action between February 2002 and February 2003. That failure was maladministration. The County Council agreed to remedy the consequent injustice by paying £250 each to the complainants who live nearest to the site and £100 to the other complainant.
24 July 2003
Rother District Council (02/A/1257)
Listed buildings and consideration/neighbour amenity
'Mrs Scott' (not her real name) complained about the way in which the Council dealt with a breach of Listed Building Consent in respect of her neighbour's conservatory extension. She was particularly concerned, in her view:
During the investigation of the complaint, the question arose whether the extension was permitted development, or whether the Council should have sought a planning application from the neighbour as well as a Listed Building Consent application.
The Ombudsman found that, although the Council had given Mrs Scott inconsistent advice, and there had been some delay before the Council decided to take action to deal with breaches of Listed Building Consent, these failings were not so significant as to amount to maladministration. He concluded that the Council could not be held responsible for any infringement of MrsScott's property rights. He did not find maladministration in respect of the wording of the site notice, or in respect of the action taken by the Council to deal with breaches of Listed Building Consent.
The Ombudsman found that the Council misdirected itself in law in deciding that the development was permitted development under Part1 of Schedule2 to the General Permitted Development Order 1995. He concluded that this error amounted to maladministration which had caused injustice to MrsScott because, had the Council sought and considered a planning application, it would have been required to take her amenities into account when determining the application.
The Ombudsman recommended that the Council should pay Mrs Scott £250, plus £250 for her time and trouble; and that the Council should reconsider its interpretation of the relevant section of the General Permitted Development Order 1995 in the light of his conclusions
1 July 2003
Macclesfield Borough Council (02/C/12343)
A firm of architects complained that the Council was failing to deal with planning applications in accordance with the law and, in particular, that it was failing to acknowledge receipt of applications promptly and failing to register and determine them within the statutory time scales despite having cashed the fees sometimes many weeks earlier. They also complained that the Council failed to consider their formal letters of complaint seriously and within a reasonable period of time.
The Ombudsman found that the Council had clearly failed to meet either the law or its own charter in its failure, in many cases, to acknowledge, register and determine applications for planning permission within the prescribed time scales. The Ombudsman found that the Council had interpreted the law incorrectly.
The Ombudsman also found that the Council had failed to meet its own standard for acknowledging and responding to complaints.
The Ombudsman found maladministration causing injustice to the complainants and recommended that the Council should amend its procedures to bring them into line with the statutory requirements, apologise to the complainants and pay them £500.
30 July 2003
Poole Borough Council (01/B/8368)
Publicity for planning applications
'Mr Arnold' (not his real name) owned a two storey property in a parade of shops. The Council received an application for planning permission for an upstairs extension from MrArnold's neighbour. It failed to follow its procedures for notifying Mr Arnold of the letter. If Mr Arnold had been aware of the application, he would have asked his ward councillor to refer the application to committee, and would also have exercised his right to address the members of the committee when they determined the application. In the event it was determined by officers, and planning permission was granted.
The Ombudsman was satisfied that the ward councillor would have referred the application to committee if he had been asked to do so. The members of the Planning Committee were interviewed, and many of them expressed reservations about the application. The Ombudsman took the view that they would not necessarily have followed the officer's recommendation. The Ombudsman considered it likely that the extension would have been constructed in some form, but that members may have deferred the decision to enable officers to negotiate with the applicant and achieve a scheme which had less impact on Mr Arnold's property.
The Ombudsman found maladministration causing injustice in the Council's failure to follow procedures, and recommended the Council to pay Mr Arnold £1,000 to compensate him for outrage and the loss of an opportunity to object.
7 October 2002
London Borough of Lewisham (02/B/3922 et al)
Publicity for planning applications
The complainants live in houses backing on to an area of ground between two blocks of council flats. They complained that the Council failed to consult them about proposals to redevelop the area. They were particularly concerned about the development of a ball court behind their gardens which was visually intrusive and has led to unacceptable levels of nuisance.
There was no evidence that the Council had properly considered the impact of the development on the neighbours before granting planning permission.
The Council publicised the development by way of a site notice; it did not send individual neighbour notification letters, in line with its usual practice, because there had been consultation with residents about the design, by the housing department, before planning permission was sought. The residents did not have an opportunity to comment on the planning application. They complained to the Council which proposed various modifications to the ball court to try to mitigate the nuisance, but the residents did not consider that they would be effective.
The Ombudsman found maladministration causing injustice and recommended that the Council:
28 August 2003
Findings of maladministration, no injustice
East Riding of Yorkshire Council (01/C/14248)
Consideration/neighbour amenity and enforcement
'Mr Longhurst' (not his real name) lived next door to a house used as a children's nursery. He was concerned at the Council granting planning permission for this change of use, and also over a lack of enforcement action when the nursery operated without soundproofing measures being in place.
The Ombudsman was not critical of the decision to grant permission for the change of use. Nor was she critical of a lack of action to enforce over the number of children present at the nursery before permission was granted.
The Council approved a noise attenuation scheme as requested by a condition on the permission, but failed to identify clearly a potential problem about the construction of floors in the property allowing for the transmission of noise through the structure into MrLonghurst's house.
However, the Ombudsman took the view that the Council would only have required works which the developer had actually carried out, and therefore injustice from this failure was not, in context, significant. She therefore sought no remedy from the Council. She found maladministration, but no resulting injustice to the complainant.
17 October 2002
South Gloucestershire Council (99/B/4941)
Enforcement and drainage
'Mr and Mrs Weaver' (not their real names) complained about the Council's handling of matters relating to a golf course development near their home. The Council's planning permission for the golf course included conditions that drainage details were to be submitted and approved by the Council before the development began, and an approved scheme constructed before the authorised use was commenced. The Weavers' land was subject to flooding from the golf course. They asserted that this would not have occurred had the Council exercised proper control over the development.
In 1999 the Council undertook additional drainage work in the highway at its own expense, which was designed to contain and redirect the drainage flows leaving the golf course land. This remedied the problem.
The Ombudsman found that the Council:
The Ombudsman found that Mr and Mrs Weaver's injustice from the maladministration he identified had already been remedied by the Council's drainage works.
Mr and Mrs Weaver also complained of the Council's failure to conclude matters under its own complaints procedure, but the Ombudsman did not uphold this complaint.
27 January 2003
Local settlement reports
East Devon District Council (01/B/14467)
'Mr and Mrs Abbot' (not their real names) lived in a cottage which abutted the site of a new block of flats. When considering the reserved matters planning application for the flats, the Council failed to take proper account of Mr and Mrs Abbot's amenity. The flats as built were overly dominant, were excessively close to their home, and overlooked their garden. The Council accepted that more should have been done to safeguard the Abbots' amenity. It agreed to a 'before and after' valuation exercise. An independent valuer assessed the value of the Abbots' home as it was, and also assessed its value with a notional scheme, more acceptable in planning terms, on the neighbouring site. The Council agreed to pay Mr and Mrs Abbot the difference between the two valuations, amounting to £37,500 plus £250 for their time and trouble in pursuing the complaint.
The Ombudsman found maladministration causing injustice, already remedied by the Council.
3 December 2002
North Lincolnshire Council (02/C/773, 781 & 871)
Publicity for planning applications and consideration/neighbour amenity
Three elderly people complained that they had not been notified of a planning application for development near their homes, and that the Council had not considered their amenity when granting planning permission. The gable end of the new house was only some eight metres from the lounge and bedroom windows of their flats. The complainants said that, as a result, the light into these rooms was severely reduced.
The loss of light to two complainants was exacerbated by the prominent balconies of the first floor flats which projected a metre beyond the ground floor flat windows.
The Council's practice was to assess the loss of light using a simple geometrical formula. However, the way in which the formula was applied took no account of the projecting balconies, and the issue of light loss was not drawn to the attention of the officer determining the application for planning permission.
The Ombudsman did not uphold the complaint that the complainants had not been notified, but did find maladministration in the failure to consider the potential loss of light properly, with consequent injustice to the two complainants who lived on the ground floor.
To remedy that injustice the Council paid one complainant £600 and painted underneath the balcony outside his lounge so that more light was reflected into this room. The Council also paid a second complainant £300. No payment was made to the third complainant, who lived in a first floor flat, as she had not suffered a sufficient injustice to warrant any payment by the Council.
The Ombudsman considered the Council's actions provided a satisfactory local settlement to the complaints.
4 November 2002
Further reports (first report found maladministration causing injustice)
Chichester District Council (00/B/4869)
The complainant, 'Mr Brambling' (not his real name), was a travelling showman. The Council refused planning permission for him to retain a mobile home and an unauthorised hardstanding on his land, and issued enforcement notices. The notices were appealed and, at a Public Inquiry, the Council informed the Inspector that it was seeking an alternative site for MrBrambling and other families of travelling showpeople who resided at his site.
The Planning Inspector dismissed the appeals but, in the light of the Council's attempt to find an alternative site, extended the period of compliance with the notices to two years. Five years after the end of this compliance period the Council had resolved not to pursue an alternative site, and there was no firm resolution to the enforcement issues at the site. As a result, MrBrambling was unable to invest money in his land or develop his home and believed he has faced unnecessary uncertainty over his future.
In his first report, the Ombudsman found maladministration causing injustice and recommended the Council to pay £1,000 to Mr Brambling for the frustration caused by its failings and delays in the way it determined the provision of an alternative site. Also, if it refused planning permission for the current site, it should use best practicable means to identify and provide an alternative site as quickly as possible. In response to the report, the Council took the view that any unnecessary uncertainty over Mr Brambling's future was 'wholly due to his own actions.'
On 24 June 2002 the Ombudsman met representatives of the Council. He emphasised that, while he recognised that it was not the Council's fault that so little had been achieved over so many years, that did not mean he could ignore an avoidable delay of one-and-a-half years. He also said:
'I was well aware of the complainant's contribution to his present predicament and you will see reference to this in ' my conclusions. But I accept that I should have given more prominence to the Council's efforts. This does not mean I would wish to change my conclusion as to the relative responsibilities of the two parties or indeed my recommendation about a remedy.'
The Ombudsman acknowledged that the maladministration he found did not diminish the actions which were of credit to the Council. But, while he recognised that the Council was trying to 'do the decent thing', he issued his second report calling on the Council to reconsider its position in respect of finding a solution to the showpeople's site, and to make the payment of £1,000 to Mr Brambling.
12 December 2002
North Norfolk District Council (01/B/14450)
'Mr and Mrs Wherry' (not their real names) owned a public house in the Council's area. Trade was declining and they considered that they needed to cease trading. As they lived in the premises and wished to convert the trade areas to residential use, planning permission was needed. Mr Wherry spoke to a planning officer twice and met her once. He said she did not make him aware of a relevant local plan policy. The policy provided that any application was unlikely to succeed unless the Wherrys had first marketed the property for a year and had failed to sell it. Had he been made aware of the policy, Mr Wherry would not have submitted the application.
In his first report, the Ombudsman found maladministration causing injustice and recommended that the Council should pay Mr and Mrs Wherry £1,000. The Council declined to accept the Ombudsman's recommendation. The Ombudsman considered the reasons given by the Council but did not agree. He continued to hold the view that the Council's maladministration caused injustice to the complainants, and he called once again on the Council to give justice to Mr and Mrs Wherry by paying them £1,000 compensation.
30 January 2003