Summary: Mr X complains that the Council has failed to investigate properly his complaint about member conduct. The Ombudsman has found fault in the way the Council considered his complaint in that an incorrect assumption was made when deciding not to pursue a formal investigation. However, the Ombudsman does not consider that this is likely to have affected the decision not to investigate further.

The complaint

1. Mr X has complained to the Council about the conduct of several members, following the grant of planning permission on a site next to his property.
2. He says that, after a Council officer did not arrange a meeting between him and the owner of an adjacent site to discuss the type of barrier between their car park and the access road to his property:
• his Ward Councillor failed to liaise and consult with him; withheld information from him; demonstrated a lack of objectivity, integrity, accountability, openness, and honesty; provided misleading and inaccurate statements; and then failed to take corrective action;
• the Chair and Deputy Chair of the Planning Committee, his Ward Councillor and the Leader of the Council failed to hold the officer to account for not respecting what the Planning Committee agreed; failed to liaise with him; ignored broken promises; and failed to provide him with timely communication;
• as a result, he has been put to avoidable time and trouble and caused distress and upset. He says he has also been disadvantaged as he was unable to influence the type of barrier installed.
3. Mr X is unhappy with the Council’s decision not to pursue a formal investigation into his complaint about member conduct and the time take to inform him of this.
4. He considers that, in reviewing his complaint, the Monitoring Officer provided inadequate advice and set out subjective views when contacting the Independent Person. As a result, he does not consider that the Independent Person was able to provide an objective view on these matters. He considers that the Council should now undertake a full and impartial investigation of members’ actions.

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The Ombudsman’s role and powers

5. We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word “fault” to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as “injustice”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I have considered Mr X’s written complaint and discussed his complaint with him. I have considered the Council’s response to Mr X’s member conduct complaint, the Council’s Members’ Code of Conduct, and the papers relating to the previous complaint about Officer A’s actions, including the correspondence with members. I have also sent Mr X and the Council a draft decision and considered their comments.

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What I found

The current standards regime

9. The system of regulation of standards of member conduct in England is governed by The Localism Act 2011. This system applies to county, district and unitary councils, London boroughs, the Greater London Authority, and parish and town councils. Local authorities must have a Code of Conduct for members, which must be consistent with the Nolan Committee’s principles of selflessness, honesty, integrity, objectivity, accountability, openness, and leadership.
10. All local authorities (other than parish and town councils) must have procedures in place to deal with complaints about member conduct. It is for each authority to decide the details of those procedures, but they must appoint at least one Independent Person whose views are to be taken into account before making a decision on a complaint that they have decided to investigate.
11. Generally, the Monitoring Officer will first assess a complaint and decide whether it merits formal investigation. They may dismiss a complaint if, for example, there is no breach of the Code of Conduct, the councillor was not acting in an official capacity, the matter is trivial or it is not in the public interest to investigate. If they decide to carry out a formal investigation, this may involve the Monitoring Officer, another Investigating Officer and the Standards Committee or Hearings Panel and will include an Independent Person.

What happened

12. Mr X owns a house which adjoins a property converted to provide healthcare (the site). The site’s car park adjoins the garden of Mr X’s property and an access road used to reach his garage runs along the car park’s southern boundary. The site has been developed over time with applications dating back several decades.
13. In 2018, the site owner (the owner) created two additional parking spaces without seeking planning permission. The owner removed landscaping next to Mr X’s house to create one of the areas. At the Council’s request, the owner submitted a retrospective planning application for the works.
14. Mr X objected to the application. He said that drivers could only access the new parking spaces by using his access road. He said that cars parking in the spaces overhung the alleyway preventing access to his garage. This also occurred when the healthcare facility was closed.
15. A planning officer (Officer A) contacted the owner before the Planning Committee meeting to discuss a possible barrier. He then explained to Mr X:

“Strictly speaking, in planning terms, my officers are correct in advising that we could not require such a barrier along the car park edge, so this is a voluntary undertaking and one which I consider to be entirely proportionate to addressing the specific concern raised about encroachment. To manage your expectations, the [owner is] not prepared to build a wall… but subject to the decision of Planning Committee this evening, details of the means by which this barrier will be formed will be reserved by an additional condition...”

16. The Planning Committee considered the application at a meeting in the summer of 2019. During the meeting, there were extensive discussions between members and officers about the need for a barrier between the car park and access road.
17. Mr X’s ward member suggested that, having discussed matters with Mr X, a fair solution would be for the owner to install a sturdy and permanent physical barrier.
18. Officer A said that it was not the type of barrier that was important but what it would achieve. He explained that a planning condition could not reasonably specify the type of barrier to be used, as no barrier was removed when the owner undertook the works. However, if the Committee was minded to approve the application, the type of barrier could be subject to further discussion.
19. A councillor suggested attaching a condition to any grant of permission whereby the type of barrier would be agreed by Mr X and the applicant. Officer A said he would mediate between the parties.
20. The Planning Committee meeting minutes recorded that,

“…Members agreed that conditions be amended that a meeting would take place between the applicant and the objector within 3 months to agree the installation of a barrier. It was agreed that either Officers or ward Councillors would support this meeting.”

21. The Committee voted unanimously to approve the application, subject to a condition requiring details of a barrier to prevent vehicles accessing or overhanging the access to be submitted within three months.
22. After the Committee meeting, Officer A agreed to contact Mr X. On 12 August, Mr X asked Officer A if he had arranged the meeting and he said he was working on it. On 16 August, Officer A emailed Mr X a picture of a post and chain fence and asked for his thoughts. Mr X had concerns about its robustness and durability and foresaw problems if it was damaged and blocked the alleyway. He also raised concerns about Officer’s A management of the negotiations.
23. On 29 August Mr X asked Officer A for an update. The officer replied that he would forward Mr X’s counter-suggestion to the owner for comment.
24. Mr X expressed concern that Officer A was not managing the process effectively and had not arranged a joint meeting. He also wrote directly to the owner with his suggestion for a strong barrier such as a concrete fence. The owner replied saying they would only liaise with the Council’s Planning Department.
25. Mr X was unhappy with the lack of progress and complained to Officer A. Officer A advised Mr X that he had met the applicant in July and he considered that a post and link chain barrier met the requirements of the condition.
26. Mr X requested that the officer and the planning department take no further action until the issue had been properly dealt with. He then asked his local councillors, the Chair and Vice Chair of the Planning Committee, and the Leader of the Council to help ensure Officer A kept his commitment to arrange a meeting and mediate between the parties.
27. Officer A emailed Mr X, and copied in the relevant councillors, explaining that he had sought to progress matters but had not been able to arrange a meeting because a suitable date could not be found. He also said that,

“It seems that your requests far exceed what the surgery are willing to provide and are so far removed from what is reasonable to fulfil the terms of the planning condition that there does not appear to be any merit in arranging a meeting as there appears to be little likelihood of the surgery accepting your suggestions.”

28. Mr X felt the response was contrived. He complained about the officer’s actions and sought the assistance of councillors as he wanted the matter to be discussed further by the Planning Committee, and the opportunity to negotiate on the type of barrier. There was further communication with councillors in September and October. The Ward Councillor set out his understanding of events and explained that he felt that the proposals were realistic and that the committee would not normally consider the implementation of a planning condition. The Ward Councillor asked the Chair and Deputy Chair of the Planning Committee if anything further could be done. Mr X also set out his concerns to councillors in several emails but received no further response.
29. In December, Mr X made a formal complaint to the Council about Officer A’s actions, and the response of councillors to his concerns.
30. The Council responded through both stages of its corporate complaints procedures. It accepted that there had been no joint meeting but did not consider that this had affected the outcome. It also advised Mr X that he would need to pursue any complaint about members by making a Code of Conduct complaint.
31. Mr X approached the Ombudsman for assistance in March 2020. He also made a Code of Conduct complaint to the Council regarding the conduct of councillors.
32. The Ombudsman found that the officer’s failure to arrange a meeting or pass on his suggestions supported Mr X’s view that Officer A was seeking to implement the minimum fencing solution. The Ombudsman considered that, although from a planning perspective the provision of the barrier was key and not the type of barrier, Officer A had agreed to facilitate negotiations between Mr X and the owner. That said, given the considerable difference of views between the parties at the outset, the Ombudsman felt it was questionable whether a meeting would have led to any significant compromise.
33. On conclusion of the Ombudsman’s investigation, the member conduct complaint remained outstanding. The Council then considered the complaint.
34. The Council’s Monitoring Officer consulted with the Independent Person (appointed under the Council’s Constitution to assist with considering member conduct complaints).
35. He provided a copy of the Ombudsman’s decision setting out the background to the underlying events and copies of correspondence involving the Planning Officer. His advice to the Independent Person noted that the meeting minutes stated that,

“…Members agreed that conditions be amended that a meeting would take place between the applicant and the objector within 3 months to agree the installation of a barrier. It was agreed that either Officers or ward Councillors would support this meeting”.

36. He explained the following,

“Officer A had attended a site meeting. An amicable resolution was not achievable and the development proceeded and… the… officer advised members that the meeting had occurred…

In relation to the complaint against members that they let him down I think that has no merit and misunderstands the role of members. They were entitled to rely on the recorded minutes and the advice of the Chief Planning that he had met the complainant on site. I cannot see that it is in the public interest to embark upon a formal investigation. Even if the members were at fault, which I do not accept, nothing further would be achieved by embarking on a formal investigation. My feeling is that the complaint should be closed and the complainant advised accordingly.”

37. As to the time taken to deal with the complaint, he explained that,

“In the light of the Ombudsman complaint [Mr X’s] code of conduct complaint was put on hold. [though] the matter was not closed down as well as it might have been.”

38. After consulting with the Independent Person, the Monitoring Officer wrote to Mr X and explained that:

“In my opinion, which is supported by the independent person, the members were acting at all times in accordance with the council's planning protocol and the duly recorded minutes and agreed of the committee meeting. I can see no grounds for considering there to be a breach of the code. If I am incorrect in that assessment, (which I do not believe to be the case), it would not be in the public interest in terms of time and expense to undertake a formal investigation. My feeling is that the complaint should be closed and the complainant advised accordingly.”

My assessment

39. Mr X has set out in detail the actions of councillors which he considers constitute a breach of the Nolan principles and Code for Conduct.
40. The Ombudsman does not offer a right of appeal against a Council’s decision on complaints about member conduct, and it is not for the Ombudsman to determine whether the councillors’ actions constitute a breach of the Code. I do not therefore consider it appropriate to comment on each of the concerns that Mr X has raised about the councillors’ actions. I have however considered whether there was fault in the way the Monitoring Officer considered his complaint and, if so, whether this has caused injustice to Mr X.
41. Mr X considers that, when consenting the Independent Person, the Monitoring Officer should not have expressed his own views on the complaint as this meant that the Independent Person could not reach his own independent view.
42. Under the Council’s Arrangements for investigating Member Conduct complaints the first stage of the process is that,

“The Monitoring Officer will review every complaint received and, after consultation with the Independent Person, take a decision as to whether it merits formal investigation”.

43. I see nothing in the Council’s arrangements to prevent the Monitoring Officer from expressing a view on whether to formally investigate. It is for the Monitoring Officer to decide whether to investigate a complaint, and the Independent Person is at liberty to agree to disagree with that view.
44. Mr X also does not consider that the Monitoring Officer provided sufficiently detailed or accurate information for the Independent Person to make informed comments on the complaint.
45. I consider that this needs to be viewed in the context of what was being undertaken at this stage in proceedings. This was not a full investigation of Mr X’s complaint. Rather this was the first stage of the process which was to decide whether there were sufficient grounds to carry out a full investigation.
46. I note that the Monitoring Officer reviewed the complaint and supporting papers, summarised the case and set out his preliminary view for the Independent Person. He also provided a copy of the Ombudsman’s previous decision referring to the underlying issues, and copies of email correspondence involving Officer A.
47. I see no fault here – this seems to me a proportionate approach to the first stage of the process.
48. Mr X has also questioned the accuracy of the information that the Monitoring Officer took into consideration and provided to the Independent Person. He questions the statement that members were entitled to rely on the recorded minutes. He has pointed out that the Ombudsman found in the previous decision that the minutes wrongly suggested he asked for a meeting with the owner when the suggestion was made by a councillor. He considers that the Monitoring Officer should have referred back to the recording of the meeting.
49. I appreciate that Mr X considers that the minutes do not accurately reflect what was a lengthy discussion at the committee meeting, but it does not appear to be in dispute that Mr X wanted to meet with the owner to discuss the possible options for a barrier. In this regard, any accuracy over who had asked for a meeting does not appear to be of any great significance to the consideration of the Member Conduct Complaint.
50. However, the Monitoring Officer also advised the Independent Person that he considered that there was no breach of the Code of Conduct in part because councillors were entitled to rely on the officer’s advice that he had met the complainant on site. On that basis, the Monitoring Officer had concluded that,

“it would not be in the public interest in terms of time and expense to undertake a formal investigation”.

51. However, the Monitoring Officer’s assumption was incorrect. No such meeting had taken place. This assumption was therefore incorrect. I have therefore considered whether this is likely to have affected the Monitoring officer’s decision not to pursue a formal investigation.
52. I consider that, from a planning perspective, the following matters to be pertinent:
• There was no barrier along the boundary in question, and no boundary conditions applied to the 2005 application. The retrospective application only involved two small areas of additional hardstanding. So officers did not consider that the test would be met to require enclosure of the boundary.
• If the owner did not agree the type of barrier, they could appeal and the Planning Inspector would likely decide that no barrier was required. The decision to install a barrier was essentially voluntary on the part of the owner.
53. Officers and councillors were mindful of Mr X’s concerns and agreed to find a solution to restrict access over the driveway. They supported the suggestion of arranging a meeting between the parties to discuss the type of barrier.
54. It seems clear from the outset that site owner was unwilling to install a wall. Moreover, when Mr X contacted councillors in September and October 2019 with concerns about Officer A’s actions and the lack of a meeting, the site owner was unwilling to meet Mr X or to agree to his suggestion of boarded concrete fencing.
55. I appreciate that Mr X considers that members should have done more to support him and is unhappy with how they communicated with him. However, the Ward Member in particular did follow up with the officer and also with Mr X. At this point, I consider that there was little practical action that members could take given the unwillingness of the owner to meet with Mr X or to agree to his suggestion.
56. So, regardless of the Monitoring Officer’s incorrect assumption that the officer had met Mr X, I see no purpose in the Ombudsman asking the Monitoring Officer to review his decision, because I do not consider it likely that he would have reached a different conclusion that it was not in the public interest to investigate.
57. As to the delay in considering Mr X’s complaint, I consider that this was primarily because the Council was awaiting the result of the Ombudsman’s investigation into the underlying complaint. Given that these matters are substantially interrelated, I do not consider that to be unreasonable.

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Final decision

58. I have closed my investigation into Mr X’s complaint because I do not consider that the incorrect assumption affected the decision not to pursue a formal investigation.

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Investigator's decision on behalf of the Ombudsman