Summary: The Ombudsman found fault by the Council on Mrs D’s complaint of it failing to ensure land it allowed a contractor to use during road improvements was promptly returned to its previous condition through landscaping on completion. The Council did not promptly reply to her contact and failed to prepare and provide a copy of a work plan it agreed to do during a meeting in May 2019. The agreed action remedies the injustice caused.

The complaint

1. Mrs D complains the Council failed to ensure land it allowed a contractor to use during road improvement works was promptly returned to its previous condition through landscaping in compliance with a planning condition; as a result of the delay, she spent a lot of time and effort pursuing the Council about its inaction and feels her credibility with local residents, whom she keeps informed, suffered.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered all the information Mrs D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.

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What I found

5. The Council granted planning consent, with conditions, for road improvements which included a flyover, an extra lane, and works to a slip road. Rubble used was temporarily stored at a compound on nearby open space. The compound was made up of 3 different sites. The contractor used most of the rubble during construction works.
6. Mrs D is unhappy the contractor failed to comply with landscape conditions when construction ended. These required the planting of trees, shrubs, and the return of the compound to its previous condition. While she accepts some trees were planted, she believes they were not to the required standard. This meant some died as the developer failed to provide enough depth and top soil.
7. Mrs D became aware of a dispute between the Council and contractor about the landscaping. The Council finally agreed to do some of it. She is unhappy the Council kept moving completion dates for works, doing them late, or not doing some at all. Completion of landscaping took more than 3 years. She also complains the Council failed to deal with her formal complaint properly.
8. In response to my enquiries, the Council accepted it had a landscaping scheme with the contractor but, later agreed to remove the scheme from the contract. The Council decided to carry out landscaping instead. This followed a legal dispute.
9. The following are key dates:

2014

• February: The Council gave planning consent for improvement works to the highway. It contained conditions about landscaping works shown on approved plans;

2015

• July: The improvements to the highway were completed. The contractor handed the sites back to the Council. The Council pursued the contractor to ensure landscaping and remedial works to the compound sites were done. Despite the contractor’s assurances, the works were not done. The contractual dispute took 6 months to resolve;

2017

• March: The Council followed legal advice and entered in to a settlement agreement with the contractor. Under it, the contractor did not have to do landscape works for the verges or the compound. The Council would do them. At this point, the planting season (October to March) had passed so the Council would do the works the following planting season. The planting would involve more than 2,600 trees and 1,500 ground cover shrubs of different species. Limited ground maintenance was only done after the agreement, not during the period of the dispute. In response to my draft decision, Mrs D provided a copy email in which a Council officer told her about the removal of this from the contract in May 2016;
• May: In response to my draft decision, Mrs D noted there was a site meeting with officers, local councillors and residents;
• December: The Council started landscape preparation works. This involved cutting grass, cutting vegetation along the highway embankment, getting specialist equipment, and spraying vegetation at the compound. The dense covering of vegetation was unsightly and difficult to deal with because of the steepness of verges;

2018

• January: The Council prepared a report response for committee to a petition received from Mrs D. It requested the Council landscape land near the roadworks including the compound area and slip roads. The petition noted: the contractor failed to return the compound to its original condition as required; while the Council did some landscaping instead, it was visually unattractive, uneven with weeds, and attracted litter; and, despite requests, the Council failed to carry out the works needed.

The report proposed the Council cultivating and planting wild flowers at the compound. It would start ground works in December and seed between April/May 2018. Planting of trees and shrubs would be done between January and March. The committee minutes noted preparation works were done the month before. A councillor noted the frustration felt as Mrs D contacted the Council over the previous 2 years about the lack of progress with these sites. The Council would tell her it would do the works only for nothing to happen. Committee members apologised for the delays to Mrs D who was present but, they were due to complicated contractual issues with the contractor. Some members expressed concerns about the lack of responses to her emails;

• July: In response to my draft decision, Mrs D note there was a site meeting with residents, officers and councillors;
• In response to my enquiries, the Council noted that due to an extremely dry summer, 7 out of 96 trees planted died. Over 2018 and 2019, the Council maintained the trees by water deliveries each week;

2019

• March: An officer replied to Mrs D’s email about the condition of some of the trees;
• May: The original plan to sow wild flowers on the open space was not possible because of the ground condition. Instead, following a meeting with residents, the Council agreed to plant coppice trees instead. The Council also agreed grass cutting was part of the general maintenance programme, it would carry out replacement tree planting, and develop a tree copse. Under its maintenance contract, weeds were removed from tree bases, stakes checked, and ties secured, with pruning of problem branches where necessary. Mrs D also noted there was a site meeting which she did not attend;
• June: The Council received a complaint from Mrs D about the maintenance of the slip road. A few days later, the Council sent her its response. It told her work started on mowing the edging strip on some roads, which it would complete the following month. It could not strim round the base of the newly planted trees on the advice of the arboriculture team; and
• July: In its stage 2 complaint response, the Council told Mrs D why it had not carried out the programme agreed in May. This was because of high workloads. It accepted the work plan had not been produced and sent following the meeting in May but, had carried out the works agreed at it. The Council agreed to create a woodland copse, plant new trees in November, strim, and cut twice a year (March/April and September/October). It accepted it responded 1 day over its target under its complaints procedure at stage 1.

Analysis

10. I now examine Mrs D’s individual complaints.

Failing to respond to correspondence

11. Mrs D complains officers failed to respond to her correspondence over the years.
12. I did not see every item of correspondence between Mrs D and the Council over the years. This is because it would not have justified the time and expense involved examining whether the Council responded to each email, letter, or telephone call from Mrs D. What I have seen shows there was some concern about failures to reply to her correspondence. I note councillors raised concerns at the committee meeting in January 2018.
13. On balance, therefore, I am satisfied there is some evidence showing the Council may not have replied promptly, or at all, to some of her contact. This is fault. This caused her some avoidable injustice as she would have experienced some frustration and inconvenience when she did not receive a response.

Failing to act

14. Mrs D complains the Council failed to act, carry out, and complete landscaping and planting works despite agreeing to do so.
15. I make the following findings on this complaint:
1. There was clearly a dispute between the Council and the contractor about landscaping and returning the compound sites to the condition they were in before the road works. This lasted some time and ended up with the Council getting legal advice before reaching a settlement about it. I do not find fault with the Council during this period. Clearly, until the end of negotiations, and the obtaining of legal advice, the Council decided these came within the responsibility of the contractor under the contract. By the time it reached an agreement with the contractor to do the works itself, it had missed the planting season for 2017/2018;
2. The Council decided it could not do the seeding of the wild flowers in April/May 2018. This was because of the soil condition. It is unclear why this was not identified in December 2017 when it carried out ground works;
3. The Council planted trees on the sites in 2018; and
4. The Council accepted it failed to provide the work plan it agreed to do in May 2019 when it sent her its stage 2 response to her complaint in July. This is fault. This caused Mrs D an injustice as she had raised expectations about receiving the work plan and had the frustration and inconvenience of chasing the Council for it.

Complaint procedure

16. I found no fault on Mrs D’s complaint of the Council failing to deal with her complaint properly under its complaints procedure.
17. The Council’s complaints procedure has 2 parts:

• Stage 1: If the complaint remains unresolved after informal attempts, it is sent to the relevant service for investigation and feedback. The Council will try and resolve the complaint and send a response within 10 working days. Where this is not possible, an update is sent with an estimate of the likely timescale.

The Council received Mrs D’s complaint on 12 June. The Council sent its stage 1 response on 27 June. The response was due by 26 June. I am not satisfied the Council sending the response a day late justifies a finding of fault. In reaching this conclusion, I took account of the holiday period and officers going on leave at the time.

• Stage 2: A complainant can ask for a complaint to go to stage 2 if they remain dissatisfied. The Council will usually respond within 20 working days from receiving the request. Again, where this is not possible, complainants are sent an update and estimate of the likely timescale for a response.

On 8 July, Mrs D asked for the complaint to go to stage 2. The Council sent her its response on 25 July. This was within its stated timescale.

Agreed action

18. I considered our guidance on remedies.
19. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Mrs D a written apology for its failure to respond promptly, or at all, to her contact and for the failure to send the work plan promptly after the meeting in May 2019;
2. Pay her £100 for the injustice the failures caused her;
3. Act to ensure contacts are responded to promptly and where this is not possible, or the level of contact becomes too much and a drain on resources, the Council will set out reasonable and realistic levels of contact for that individual on that topic; and
4. Ensure actions it agrees to take are taken and, if there is any delay likely, it will warn and explain this to the individual, and give considered time estimates for completion of the action.

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Final decision

20. The Ombudsman found fault causing injustice on Mrs D’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman