Summary: The Council has not yet completed work to improve communication with residents about a local development, but this has not caused Mr X significant personal injustice.

The complaint

1. Mr X says the Council failed to take steps agreed in the Ombudsman’s decision statement on his earlier complaint. The steps aimed to provide more information and reassurance for Mr X, and other local people, about development near his home. Mr X says he remains unable to raise concerns about nuisances arising from use of the development at the Local Liaison Forum (LLF). Mr X wants the Council to act on the agreed steps.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. 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), 26A(1) and 34(3), as amended)
3. 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

4. I have:

• Considered Mr X’s written complaint, supporting papers and the note of his telephone conversation with another of the Ombudsman’s investigators.
• Considered the Ombudsman’s earlier decision statement about the development near Mr X’s home.
• Considered publicly available information about the LLF.
• Asked for and considered the Council’s comments on the complaint.
• Shared the Council’s comments with Mr X.
• Shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background: The LLF

5. The Ombudsman investigated a complaint about the Council’s handling of reported breaches of planning conditions at a development near Mr X’s home (‘the Development’). The Development is a major development the subject of much local opposition when granted planning permission by the Secretary of State. Before the grant of planning permission, the Council and the developer (‘the Operator’) signed a legal agreement about the Development that included creating the LLF. The agreement said the Operator had to get the Council’s approval to a scheme for an LLF. The agreement gave no details about the role or purpose of the LLF but said the scheme should include its membership and meeting frequency. Once approved by the Council, the agreement said the Operator had to carry out the LLF scheme “unless otherwise agreed in writing with the Council”.
6. Shortly after the grant of planning permission, the Council considered the proposed LLF. The Council’s report said the LLF’s purpose was to act as a communication channel between it, the Operator and community stakeholders. And it was “to keep residents fully informed during construction of the [Development] and to respond to queries raised”. The report said the Operator had agreed to keep the LLF after construction while it ‘remained of benefit’. And, the Council would “periodically” review the purpose and need for the LLF. The report set out the proposed membership of the LLF, which included representatives of/for the Operator and both officers and councillors from the Council. There was no proposal for a residents’ representative as a member of the LLF.
7. The Council says before the LLF, a local community group existed concerned about the planning application and later permission for the Development. A member of this group joined the LLF to provide a link between it and the group. The group was later disbanded but their former member remained on the LLF.
8. When investigating Mr X’s earlier complaint, the LLF’s then published ‘terms of reference’ said it would “continue…for as long as it is deemed beneficial” and its purpose was:

“…to provide an open channel of communication between [the Operator, Council and others] and community stakeholders from those areas located nearest to the [Development]. This will be a two-way process…

The key deliverable of the Forum will be effective communication between all interested parties. This will be achieved through open and honest discussion based on matters directly relevant to the [Development]…

The purpose of, and the need for, the Forum will be subject to periodic review by [the Council].”

9. These terms of reference also said LLF membership should include representatives of the Operator, the Council, the Environment Agency, and residents.

Background: The Ombudsman’s earlier decision statement

10. In deciding Mr X’s earlier complaint, the Ombudsman’s did not find the Council at fault in dealing with reported planning breaches at the Development. But during the investigation the Council accepted some suggestions for future noise surveys for the Development and about the LLF. Mr X now complains the Council has not acted on these suggestions.
11. The Council says there have been no noise surveys for the Development since the Ombudsman’s earlier decision. So, it has not yet had any reason to act on the noise suggestions.
12. The LLF suggestions arose from concerns about its ‘community engagement’ role and its involvement with complaints about the Development. The LLF’s terms of reference said membership of the LLF would include a ‘residents’ representative. However, the former community group member (see paragraph 7 of this statement), a local resident, had left the LLF and not been replaced. And the terms of reference did not give the LLF a role in considering complaints about the Development. To address these concerns, the Council agreed:

• As a member, to raise with the LLF how best to fill the residents’ representative vacancy; and
• To review how best to engage and communicate with residents about the Development, and to clarify its role and responsibilities and those of the Environment Agency and the Operator. The aim being to reassure residents and better manage expectations given the Development has planning permission and an environmental permit from the Environment Agency.

The LLF since the Ombudsman’s earlier decision statement

13. The Council raised both the residents’ representative vacancy and communication issues at the next LLF meeting after the Ombudsman decided Mr X’s earlier complaint. The minutes of that LLF meeting show the Council provided background information explaining how a residents’ representative had first joined the LLF (see paragraph 7). The former group member had not joined following a recruitment exercise and the LLF had no procedure in place to appoint a replacement residents’ representative. The Council said a residents’ representative should be objective and not biased towards stopping the Development, which had a lawful planning permission. The representative should also have broad community support. The Council suggested until the LLF decided what to do, its six councillors that were already members of the LLF, and democratically elected, could act for local people. The Council asked the LLF to consider how to appoint a new residents’ representative.
14. The Council also said it had told the Ombudsman the LLF could improve its ‘two-way communication’ with local people. The Council therefore asked the LLF to consider both its terms of reference and purpose in communicating with local people.
15. The published minutes of that meeting, and the records of the following five meetings, show the LLF discussed both appointing a residents’ representative and communication matters. The points and suggestions raised during discussions included:

• Consideration of how other bodies appointed representatives, for example, school governors.
• Consideration of other groups with a community representative.
• A councillor reporting local people favoured a ballot for selecting a representative and the LLF needing to agree rules for any ballot.
• The Operator’s concerns that, being responsible for running the LLF, it might face bias allegations in carrying out a ballot.
• Producing information for a selection procedure and the Operator’s concerns it had no specific expertise in creating and running a residents’ representative selection procedure.
• Preparing a role profile and job description for a residents’ representative.
• Management of expectations as a residents’ representative would be a channel for communication between local people and the LLF.
• Legal and data protection issues as the residents’ representative would need to publish their contact details so people could get in touch.
• Use of the Operator’s mailing list for the Development, which included about 1800 local addresses, for communications.

16. The minutes of the fourth LLF meeting held after the Ombudsman’s earlier decision refer to reports of local legal action against the Operator. The Operator suggested not filling the residents’ representative vacancy before any such legal action was complete. Meanwhile, councillors could continue to represent local people. The minutes also show the LLF turned its focus to improving and widening means of communication with local people. And changing the LLF’s terms of reference to provide for this.
17. At the next meeting, Operator produced both a draft communication plan and updated terms of reference for consideration by the LLF. The minutes of the meeting show the LLF agreed not to fill the residents’ representative vacancy and that residents should raise any concerns through their local councillors. The LLF also agreed, in principle, the draft communication plan.
18. At the latest meeting covered by this investigation, the LLF confirmed the new terms of reference, which are now on the Operator’s website. The new terms set out the same purpose as the preceding terms and repeat the wording quoted at paragraph 8 of this statement. The new terms do not include a residents’ representative as a member of the LLF. The meeting also approved the communication plan. The plan aims “to explain the nature and operations of the [Development]…and to provide a vehicle for the management of community relations…”. The plan sets out different methods for communication including newsletters, educational provision, and social media.

Consideration

Future noise surveys

19. I have seen no evidence the Council has yet needed to action the agreements it made during the Ombudsman’s earlier investigation about future noise surveys for the Development. As those actions have not yet been triggered, I cannot find the Council at fault for not performing them.

Raising the residents’ representative vacancy with LLF

20. The evidence shows the Council quickly followed up its agreement to raise the residents’ representative vacancy with the LLF. I cannot therefore find the Council at fault on this point. And yet, I recognise Mr X will likely be disappointed and frustrated at the result of the Council’s action. I have no doubt Mr X expected the Council, through its membership of the LLF, to secure a new residents’ representative for the LLF. Indeed, given the continuing stated purpose of the LLF, about two-way open communication, many people may find it difficult to accept this is achievable without a residents’ representative.
21. However, the agreement (see paragraph 5), which is the legal basis for the LLF, did not expressly specify a residents’ representative. And, when the Council approved membership of the LLF (see paragraph 6), it did not include a residents’ representative. I cannot therefore find the Council and Operator, as parties to the legal agreement, have considered a residents’ representative necessary to fulfil the stated purpose of the LLF since its creation. And, the terms of reference for the LLF are matters for the Council, and the Operator, given the LLF exists due to their legal agreement. So, while the LLF’s terms of reference no longer include a residents’ representative member, I have no grounds to find fault in how the Council acted in raising this issue.

Review engagement and communication with residents

22. The Council also previously agreed to review its role, responsibilities, and communication with residents about the Development. The Council says it has not yet completed such review.
23. However, the evidence shows that in raising the issue of a residents’ representative with the LLF, it, with other LLF members has acted to improve communication with residents. The LLF terms of reference show that six of the Council’s councillors are members. As the Council points out, residents elect their councillors and councillors have a role in representing residents’ views on local matters. The Council say its councillors are well suited to providing and supporting two-way communication between the Operator/LLF and residents. I find the Council’s position on the role of its councillors on the LLF has merit and is sustainable.
24. The LLF, of which eight of the eleven members are either the Council’s officers or councillors, has also agreed a communication plan. This plan mainly provides for communication from the Operator/LLF to residents. And yet, in providing more information about the Development and broadening ways to share such information, it may help engage the wider community and improve ‘two-way communication’.
25. The Council also provided evidence of its correspondence with Mr X since the Ombudsman’s earlier decision statement. The Council says that correspondence shows Mr X knows how, and with whom, to raise queries, report concerns and access information about the Development. I find the evidence supports the Council’s view. I therefore do not find the Council’s failure to complete its ‘communication review’ has caused Mr X any significant direct personal injustice.

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Final decision

26. I completed my investigation finding that while the Council has yet to complete its communication review this has not caused Mr X personal injustice.

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Investigator's decision on behalf of the Ombudsman