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LOCAL GOVERNMENT OMBUDSMEN INVESTIGATION REPORTS ISSUED SINCE 19 JANUARY

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Findings of maladministration causing injustice...
Findings of maladministration causing injustice

Bedford Borough Council (04/B/16901)

Planning: consideration/neighbour amenity and enforcement, and environmental health

'Mr Vincent' (not his real name for legal reasons) lives close to a field used by a model aircraft club. The Council received complaints about noise in autumn 2003, but did not investigate until summer 2004, partly because flying ceased over the winter. The Council did not decide whether the activities caused a statutory noise nuisance. The activities did not have planning permission and the Council asked the flying club to make an application. The Ombudsman considered that the Council missed an opportunity to take noise readings to decide whether noise levels were acceptable before determining the planning application.

The Council's environmental health consultant believed the site could comply with the Code of Practice on Noise from Model Aircraft by imposing of a number of conditions. Mr Vincent objected, saying that the site could not comply with the Code of Practice because of the inadequate distance between the airfield and his house. The Council did not verify this point, although it subsequently accepted it to be accurate, and did not report his objections to Committee. This was maladministration, which led to the Council imposing a condition on the grant of a temporary planning permission with which the flying club could not comply.

The Council granted planning permission for 12 months to enable it to assess the situation. Members of the Committee were unaware of Mr Vincent's representations and indicated that they would have expected his representations to have been reported to them. The Ombudsman concluded that there was doubt whether the application would have been approved if this had happened.

Mr Vincent continued to complain about noise and the Council appointed a consultant to investigate. The Ombudsman criticised the Council for delay in doing so. The consultant was not based in the area and he did not witness any flying when on site. The Ombudsman criticised the Council for not pursuing Mr Vincent's complaints with more vigour. If it had done so it might have had evidence of nuisance caused by the breach of the planning condition with which the flying club could not comply, which would have enabled it to take enforcement action.

The Ombudsman finds maladministration causing injustice and recommends the Council to:

--pay Mr Vincent£1,500; and

--review its procedures, including liaison between its planning and environmental health departments and its reporting arrangements for planning decision makers, to ensure that, as far as possible, a similar situation does not recur.

Carlisle City Council (04/C/13744)

Planning consideration/neighbour amenity & publicity for planning applications

'Mr and Mrs Callahan' (not their real names for legal reasons) complained about the Council's handling of a planning application for a substantial extension to their neighbour's home.

The Council accepts that it failed to notify the Callahans, who occupied the property most affected by the proposed development. It explains that the error arose from misinterpreting the house numbering and street names where the turning heads of two cul-de-sacs converged. However, the onus was on the Council to ensure consultation and that notification was properly conducted. This it failed to do and that was maladministration.

There were other significant failures in the procedure followed by the Council, and as a result the Council has now modified its procedures in a variety of ways from the initial validation of new applications. The Ombudsman commends the Council for reviewing and amending its procedures to remove, as far as is reasonably practicable, faults and failures in the planning process caused by human error.

The Ombudsman now recommends that the Council pays£500 to Mr and Mrs Callahan towards their expense in moving home and for their time and trouble in pursuing their complaint.

Essex County Council (05/A/880)

Social services for adults

'Mr and Mrs Bird's son 'John Bird' (not their real names for legal reasons) has athetoid cerebral palsy. He is severely physically disabled and uses a wheelchair, has speech and communication problems and a learning disability. Since 1999 he has had a number of residential placements. Mr and Mrs Bird complained that the Council:

--failed to monitor the care given to him following a move to a new placement in 2001;

--failed to manage his move to another placement properly, placing him somewhere that could not meet his needs; and

--failed to deal with their complaints properly.

The Ombudsman upheld these complaints. As a result of the Council's actions, John Bird's needs were not met. Behaviour which was caused by physical problems, exacerbated by anxiety or stress was wrongly thought to be aggressive behaviour, and there was a failure to consider the underlying causes, or identify his emotional needs. He suffered emotional harm, which has left him traumatised. The rest of the family suffered a great deal of distress, and disruption to their work and home life.

The Ombudsman finds maladministration causing injustice and recommends that the Council:

a)pays John Bird the sum of£5,000 to compensate him for the failure to meet his needs, and the harm this caused to him;

b)pays Mr and Mrs Bird the sum of£2,000 to compensate them for the distress and worry caused to them and their family; and

c)writes to John Bird explaining the changes that have been made as a result of this complaint.

London Borough of Southwark (05/B/2405 + 10 others)

Publicity for planning applications

A company wished to erect a telecommunications mast in a residential area. A pre-application consultation exercise was carried out, attracting 83 responses and revealing widespread opposition to the idea. When the Council received a planning application, it publicised it by posting a site notice, which was the legal minimum form of publicity required, and by letter to the local conservation society. The Council did not receive any representations apart from those submitted by the society. The application was approved by officers acting under delegated powers, whereas if representations had been received the application would have been referred to the Community Council for the local area for a decision.

Government guidance strongly advises councils to publicise applications as widely as possible. Here the Council initially accepted that, it should have sent notification letters to the 83 residents who had previously made submissions, of whom 11 complained to the Ombudsman. The Council invited the Ombudsman to identify a way of settling the complaint.

Many of the original representations referred to the potential health risks of a telecommunications mast. But the Ombudsman considered that the Council had followed government guidelines in discounting this factor. The development was unobtrusive and would have no impact on the amenity of local residents. But the Ombudsman considered that the residents had lost an opportunity to make representations. Had they done so the application would have been considered by the Community Council. But the Ombudsman could not conclude that the decision would have been different, and if the Community Council had refused the application the applicant may have been successful at appeal.

The Ombudsman found that if the Council had given proper consideration to its exercise of discretion to publicise more widely, it would have notified the 83 residents by letter. He believed that completing his investigation and issuing this report would sufficiently recognise the injustice sustained by the complainants.

The Ombudsman finds maladministration causing injustice and recommends the Council to review its arrangements for publicising applications relating to telecommunications masts, as part of the review it has begun into its general procedures for publicity.

Newcastle City Council (04/C/12950)

Housing sales/leaseholds

'Miss Holman' (not her real name for legal reasons) complained that, in 2003, when she attempted to exercise her right to buy her home based upon an offer the Council had made in August 2001, she was told that she would have to make a fresh application. Miss Holman bought her home and paid a price based upon a valuation determined in September 2003, but she later learned that she could have bought her home at a figure based upon the earlier valuation.

The Council readily and speedily acknowledged that it had been at fault in not allowing Miss Holman the opportunity to buy her home at the price determined by the earlier valuation. The Council admitted that other people in similar circumstances had been allowed to buy their homes in a way denied to Miss Holman. The Ombudsman commended the Council for its positive response to this complaint but felt that, in the public interest and specifically to alert others who might have been similarly affected, she should issue a public report.

In recognition of its faults, the Council agreed to:

--refund to Miss Holman the difference between the two offers; and

--compensate her for any losses she had suffered and for her time and trouble in pursuing her complaint.

Manchester City Council (05/C/426)

Education admissions

'Mr Jackson' (not his real name for legal reasons) complained that the Council adopted a Secondary School's Admissions Policy that discriminated against pupils living outside the City, by giving priority within the oversubscribed secondary schools in the City to pupils attending primary schools in the City. Mr Jackson says that the effect of this has been that his son's application to attend a City school was rejected in favour of pupils living further away from the school, though within the City. Mr Jackson claimed that the Council's policy is unlawful and does not comply with the Code of Practice published by the government.

The Ombudsman expresses the view that the Courts should decide whether or not the Council's policy is lawful. However, he has considered whether the Council properly took the Code of Practice into account in formulating its policy. He decided that the Council had not done so and that this was maladministration. It is his view that the indirect effect of the Council's policy was to discriminate against non-Manchester residents and in favour of Manchester City residents: this was maladministration. Thus admissions from outside the City to the particular school in question went from 33 in 2002 to none at all in 2004.

The Ombudsman recommends that the Council should urgently review its arrangements to ensure that the Code's guidance is followed and that there is no discrimination against pupils from outside the City. The Ombudsman is pleased to note that the Council has already indicated its wish to carry out such a review and to take account of his comments. He also recommends that the Council should pay Mr Jackson£250 for his time and trouble in pursuing his complaint.

City of Bradford Metropolitan District Council (04/C/8279)

Enforcement & consideration/neighbour amenity

'Mr Howard' (not his real name for legal reasons) complained that the Council failed to enforce conditions attached to planning permission for development on land adjacent to his home. Mr Howard complained that the developer has constructed walls (one retaining wall and one boundary wall), one on top of the other, to a height of 2.7 metres, and this has had an overbearing impact upon his property and left his home and garden without proper privacy.

The Ombudsman found clear evidence that the Council had failed to take properly into account the likely impact of the proposed development upon the residential amenity of near neighbours. This development site is steeply sloping and uneven. The Council, having been criticised by the Ombudsman for similar failings previously, had issued instructions to officers to seek information on ground levels, spot heights and other key measurements whenever they are relevant to planning applications. The Council failed in this case to obtain such necessary, detailed information before approving this application. The Ombudsman concluded that this was maladministration.

The Ombudsman was aware that the Council had taken steps that could lead to enforcement action against the developer. In response the developer had submitted a new planning application to regularise what is accepted to be unauthorised development. The Ombudsman did not seek to influence that process in any way. However, in view of the maladministration, the Council ought to take what action it can to put Mr Howard back in to the position he would have been in but for its maladministration.

To remedy the injustice, the Ombudsman recommends that the Council should:

--acknowledge the delay between Mr Howard bringing his concerns to its attention and the time that the situation is, as far as possible, rectified, by paying him£50 for every month between July 2004 and, either the date of the Council's decision on the new application if that is approved, or the date that action is taken to rectify the situation in accordance with enforcement decisions;

--ensure that, in reaching a decision on enforcement action, it takes into account its maladministration and the injustice caused to Mr Howard and his neighbours and considers what it can do, as far as is physically possible, to place him in the position he would have been in had there been no maladministration;

--review the inconsistency in the decisions made by officers to refuse and then approve applications on this site, and ensure that procedures are in place to enforce the Council's policies; and

--ensure that the appropriate committee monitors progress of any enforcement action at regular intervals and that affected residents are informed directly of progress.

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