Our rules and powers

Summary

Mr C complained that the council had not notified him of two separate planning applications (one from 2009, the other from 2012) for neighbouring properties. In their response to his complaint, the council explained that it had been the applicant's responsibility to notify neighbours for the 2009 application. However, by the time the second application was submitted, the duty to notify had moved from the applicant to the council.

In terms of the 2009 application, the council explained that they did not have a duty to 'look beyond' the applicant's self-certification, nor had there been anything in the paperwork that would reasonably have caused the planning officer to question things. In terms of 2012, the council explained that they had advertised the planning application in the local newspaper and that notice had been served on one of Mr C's tenants (who lived on a property on Mr C's land). Although the tenant passed the notification on to Mr C and he had been able to submit his objections, Mr C felt that, in both instances, the council had failed in their duty, and he was not happy with the way they had handled his complaint about this.

We took independent advice from one of our planning advisers. He reviewed the council's responses and confirmed that they had outlined the position correctly, and had taken the appropriate steps in 2012. As such, we did not uphold Mr C's complaint that the council had failed to notify him. Neither did we find that the council had handled his complaint inappropriately. Although they had taken longer than they would aim to in responding to Mr C's complaint, their responses had reasonably addressed his concerns, and they had contacted him to let him know that the matter was still ongoing.

Recommendations

We recommended that the council:

• confirm the changes made to their website and standard notification letter, as detailed in their stage 1 response.
• 

Summary

Miss C was unhappy that the council had failed to comply with recommendations made by a social work complaints review sub-committee. She said the council should have notified a sheriff that there were errors in a contact and residence report prepared by a social worker, which was submitted to the court. We did not uphold the complaint, as we found that the sub-committee only made one recommendation and that was for social work to review their processes.

Summary

Mr C complained that the council failed to deal with a planning application in line with the appropriate procedures and to appropriately take his objections into account. He also said that they failed to respond reasonably to his enquiries or deal with his complaint appropriately.

Our investigation found that the council had dealt with the planning application in line with its published scheme of delegation and that the decision was properly made. The report produced by the planning officer dealt appropriately with the objections received and the council had provided two detailed responses to Mr C's complaints. Although there were minor errors in the handling of the complaint, the council had identified and apologised for these, and there was no evidence that they had affected the council's decision.

Summary

Mr C, who is a developer, asked the council for pre-application planning advice about a proposed development. The council said that they considered the principle of the proposal acceptable and worthy of support. The letter also said, however, that only when a formal planning application was submitted could a full and thorough assessment of the proposal, including internal and external consultation and opportunity for neighbours and the public to comment.

Mr C submitted a formal application. The council then told him that they had a number of serious concerns about the proposal in relation to overdevelopment, design/ impact on a listed building, parking and other matters. They said that the new buildings on the site demonstrated very poor design both in terms of the buildings themselves and their relationship to the surrounding area. They also said that no listed building consent application had been submitted, despite requests for this. They said that they would be preparing a report recommending that the application be refused. Mr C complained to us that the council had provided unreasonable and contradictory advice about his proposed development between the pre-planning advice stage and his submission of the formal application.

After taking independent advice from a planning adviser, we made some minor criticisms of the pre-planning advice Mr C received from the council. In it, they had referred to the relevant policies, but not in their full terms. They should also have referred to the Fife Urban Design Guide, at least in general terms. That said, we found that these inadequacies, which the council accepted had occurred, were not fundamental flaws. We considered that overall, the pre-application advice was accurate as far as it went and generally satisfactory in its scope. The caveats the council had included in the pre-application advice were both acceptable and normal for this kind of situation. We did not consider that the matters the council raised when processing the application were unreasonable or contradictory to the pre-planning advice.

Summary

Mr and Mrs C have lived in their home for many years. It was separated from the next house by a small grassy amenity area. In 2005, a developer applied for planning permission for a housing development on a site behind the existing homes. Mr and Mrs C, along with many others, objected to this. In early 2006, the plans were amended to include footpath links from that development, with one such link running through the amenity area. The council refused the proposals in May 2006, but the developer appealed, and an inquiry reporter approved them, on condition that the developer entered into an agreement to contribute to the footpath links. As they thought at that point that there would be other developments in the area, and to reduce the risk to children walking to school, the council amended primary school catchment areas, in the anticipation that early completion of the housing site would provide part of the footpath link. A road construction consent (RCC) was obtained in 2008, but the recession in house building then prevented the developer from building the houses and providing the footpath link.

Faced with the agreed changes to the catchment areas from August 2012, the council's education service proposed that the council divert money from a local budget to provide the footpath link. After securing the necessary agreement from the landowners, in June 2012 the council hand-delivered a letter giving Mr and Mrs C about two weeks' notice of the start of construction of a council-funded footpath next to their home.

Our investigation did not uphold the first of Mr and Mrs C's complaints - that the council had failed to notify them of the footpath. We found that they had been aware of the housing development plans in 2005. There was no requirement to notify them of the RCC application, and the works undertaken by the council were similar to the planning consent issued on appeal and did not require further notification. We did uphold a second complaint, about the council's failure to respond to Mr and Mrs C's complaints.

Recommendations

We recommended that the council:

• apologise for the shortcomings in dealing with Mr and Mrs C's complaint.

Summary

Ms C was unhappy when the council granted planning permission for revised access arrangements from a private road. In doing so, they had taken account of part D of the Local Plan policy. They attached a binding condition to the consent - that visibility splays (an area clear of obstruction to allow drivers to see any traffic coming) were to be in place before any houses built could be occupied. Ms C complained that this could not be complied with as the access improvements could not be made because the applicant did not own the road, and it was too narrow. She said that the council were acting in breach of the policy because they did not resist the application.

When investigating this complaint, we took independent advice from one of our planning advisers. The council explained that the visibility splays were assessed against current policy and deemed appropriate, and that they considered the private road and access to be suitable for additional vehicular traffic. Council officers use their professional judgement on matters such as these. We noted that in making their decision it was for the council to judge how important each relevant point is. We cannot question a decision they are entitled to take, in the absence of evidence that something has gone wrong in the decision making process. The matter of who owned the road was not relevant to the consideration of the application.

We were satisfied that the council's processing of the application and the manner in which the access issues were considered was in line with procedure, and the council had clearly explained their position. We saw no evidence of procedural or administrative fault in the council's handling of the application.

Summary

Mr C had wanted to build a house and garage. He attended two pre-application meetings with the council's planning officer and was advised that his proposals might be viewed favourably in accordance with a rule in the local development plan (LDP), which favoured development for organic growth within 400 metres of certain settlements in the local area. Encouraged by this information, Mr C arranged for his architect to draw up plans and submit a full planning application. However, the planning officer then told Mr C that he had been given incorrect information about the 400 metre rule, that the place where he wanted to build was not included in the list of places to which the rule applied and his proposed development could not, therefore, be approved. The council explained that this error had occurred due to a new LDP coming into effect around the time of Mr C's pre-application meeting and full details of the 400 metre rule not being known at that time. Mr C was dissatisfied with the council's handling of his proposed development and sought reimbursement of the cost of preparing and submitting his planning application.

Although there was never any suggestion that Mr C had been told his planning application would be approved, we acknowledged that the information provided at the pre-application meetings gave him the confidence to prepare and submit a full application. We found that the new LDP had come into effect several weeks prior to Mr C's first pre-application meeting. Although its content would still have been open to legal challenge at that stage, we considered that there was enough information available to the planning officer at that time to advise Mr C that his proposed development would not be approved under the 400 metre rule. We considered that Mr C and his architect also had a responsibility to familiarise themselves with the LDP, but under the circumstances did not find it reasonable for the council to charge him for the planning application or advertising fees.

Recommendations

We recommended that the council:

• pay Mr C a sum of money to reimburse his planning application and advertising fees.

Summary

Mr C owns a house in the grounds of a former hospital. In considering an application for outline planning consent for the estate in 2000, the council considered that a design brief should be prepared for subsequent development, and this was later approved by the relevant committee. The council also decided to suspend permitted development rights in respect of proposals within the curtilage of dwellings (the land immediately around the houses).

Mr C was unhappy with the council's handling of subsequent applications and that they did not take enforcement action when wire fencing was erected in an area of amenity woodland immediately behind his home. He complained that the council had unreasonably delayed in dealing with planning issues since he first complained about the erection of fencing by a neighbour; inconsistently applied planning conditions and regulations to planning applications for urban fencing in a rural location: provided conflicting information about erecting fences within the woodland area; and failed to act in dealing with unauthorised fences there despite a prior commitment to take enforcement action. He also said that the council's planning service wilfully neglected to act on the findings of a recent relevant report by the Directorate of Planning and Environmental Appeals and had made selective use in support of their failure to take action about unauthorised development.

Our investigation upheld the first, second and fourth elements of Mr C's complaint as we found evidence of delay, inconsistency and a lack of thoroughness in considering some of these issues. We did not uphold the other complaints as we did not find evidence to support Mr C's view on these.

Recommendations

We recommended that the council:

• urgently review the terms of the original planning permissions for the estate with specific reference to all planning documents and their related planning conditions and agreements which deal with design, landscaping and woodland management; this review to include all consents, agreements and approvals issued under relevant conditions and the current status of any planning or management agreements, and to form a briefing for development management staff responsible for applications and enforcement in the area and for residents;
• reconsider their position following this exercise, with regard to the material planning background accompanying reports on applications; and
• urgently review their guidance for the preparation of officer reports on planning applications, to ensure that material considerations taken into account always include the terms of briefs, planning conditions and other forms of approved guidelines that apply to a site under any pre-existing consent or agreement.

Summary

Ms C had complained for some time about the antisocial behaviour of her neighbours, including noise and disturbances from them and their frequent visitors, and the council's antisocial behaviour team had opened two files as a result of this. More recently, Ms C had also complained about the untidy and overgrown state of their garden, and other related matters. She told us that the council had not acted on her complaints.

We did not find that the council had unreasonably failed to deal with her complaints about the neighbour's antisocial behaviour. Our investigation found that the council had followed their policy and had issued letters of caution, but that this had not progressed to more serious warnings. We did, however, uphold her second complaint, that the council had unreasonably failed to deal with repeated complaints about the garden, as we found that the housing department had not followed their procedure on estate supervision with specific regard to untidy gardens.

Recommendations

We recommended that the council:

• apologise to Ms C for their deficiencies in securing a practical improvement in the condition of her neighbour's garden; and
• review the current condition of the garden to assess whether there is a need for formal intervention to ensure that it meets an acceptable standard.

Summary

Mrs C's two children were educated at home. During the academic year 2011/2012, they both attended a course at a local community high school. However, with little notice, the course was withdrawn and there was no alternative provision. Mrs C was later told that community courses were only available to adults and young people over the age of 16. She said this was contrary to her experience as one of her children was aged 14 when attending the course. Mrs C complained that the council unreasonably denied her home educated children access to community courses and caused unnecessary confusion to her and her family, as their communication with her about community courses was unclear and inconsistent.

Our investigation took into account all the relevant information, including the complaints correspondence and complaints file, the council's policies on education complaints and home education, and relevant sections of the Scottish Government's home education guidance. We found that while the council applied a standard policy with regard to community education, they did not have any documentation about this. It was their intention to develop guidelines to avoid confusion to staff and customers. The council also acknowledged that one of Mrs C's children had previously been allowed to attend a community course in error. The investigation further confirmed that the information given to Mrs C was unclear and confusing, particularly in the absence of a formal written policy.

Recommendations

We recommended that the council:

• apologise for the confusion caused by their correspondence;
• apologise to Mrs C's daughter for her disappointment in being allowed to successfully audition when she did not meet the qualifying criteria; and
• develop a set of written guidelines regarding access to community schools.