London Borough of Merton (18 000 396)

Category : Planning > Other

Decision : Upheld

Decision date : 05 Oct 2018

The Ombudsman's final decision:

Summary: The Council was not at fault when it failed to notify Mrs Y about changes to a nearby planning application because there was no requirement for it to do so. Nor does the Council have consider the weight limit on the access road because it is a private matter between the land owners and the developer. But it failed to adequately respond to Mr X’s correspondence and complaints despite previous criticism on this issue from the Ombudsman.

The complaint

  1. The complainants, Mr and Mrs X complain on behalf of Mrs X’s mother, Mrs Y. They complain that the Council:
      1. Approved a Construction Management Plan which did not account for a weight restriction on the access road to the development site.
      2. Failed to consult them about changes to the planning application.
      3. Failed to respond to their communications and complaints despite a previous Ombudsman decision which criticised the Council for poor communication.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. (Local Government Act 1974, section 34(3), as amended)
  3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
  4. 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

  1. I have:
    • Read the papers submitted by Mr X and discussed the complaint with him.
    • Considered the Council’s comments about the complaint and the supporting documents it provided.
    • Provided both parties with the opportunity to comment on a draft decision and considered their comments.

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What I found

  1. In 2017 Mr X complained to the Ombudsman. He complained the Council failed to properly consider the impact of a development on Mrs Y’s amenity. He also complained that the Council failed to let him speak at the planning committee meeting and did not respond to his correspondence.
  2. The Ombudsman issued a final decision and found that the report to committee did not accurately describe Mrs Y’s address in relation to the development. But had the fault not occurred, it is likely the planning committee would have made the same decision to approve the application.
  3. However, we found that the Council failed to adequately respond to Mr X’s request to speak at the planning committee meeting and it was delayed responding to his correspondence. The Ombudsman, therefore, recommended a time and trouble payment which the Council agreed to pay.

Events leading to the complaint

  1. In 2016 the Council granted planning permission, via committee, to demolish an existing block of flats and to build a new housing development. Mr X objected to the application because he said it would result in unacceptable overlooking for Mrs Y. He also told the Council the access road has a two-ton weight limit to protect utilities.
  2. The Council granted permission with 12 planning conditions. One of the conditions said the development should not start until the Council had approved a Construction Management Plan (CMP). It said the CMP should cover the access arrangements to the site.
  3. In May 2017, the developer sent a new application to the Council to remove a planning condition which related to upgrading the access road. The developer said it could not comply with the condition because it did not own the land. It said residents were holding the developers to ransom to pay for the highway resurfacing.
  4. The Council notified Mr X of this application and he wrote a letter of objection. He said the road was in poor condition and the developer wanted residents to pay for the upgrade without contributing. Mr X also reiterated that the road had a two-ton weight limit which the developer needed to adhere to.
  5. In November 2017, Mr X wrote to the Council and asked for information about the CMP. He wanted to know whether the Council had approved it and where he could view it. The Council did not respond and Mr X wrote to the Chief Executive’s office in December chasing a reply. The office passed this complaint onto the planning department to respond to but Mr X did not receive a reply or an update from anyone within the Council.
  6. In January 2018, the developer made an application to discharge three of the planning conditions, including the CMP condition. Alongside the application it provided a CMP which contained details of how vehicles will access the site. The plan states that most vehicles will drop deliveries off at the end of the private access road. They plan to then use a smaller vehicle to access the site. However, it mentions that some vehicles, up to 18 tons, will have access to the site via the road. This application remains outstanding and the conditions have not been discharged. The Council told the Ombudsman it is waiting for some further information about asbestos removal in relation to a different condition.
  7. After failing to receive a response to his letter in December 2017, Mr X wrote to the complaints team at the Council about the lack of response. He asked the Council to investigate. The complaints team asked the planning team to respond to Mr X; which it did the next day. A planning officer apologised for not responding to Mr X’s letters and provided him with a link where he could access the CMP on its website.
  8. A week later, Mr X contacted the officer and said the link was broken and he could not access the CMP. He also said he was aware of the developer’s application to remove the condition about upgrading the road and raised his concerns. Mr X also asked the Council whether the developer had submitted the CMP and why he was not notified of the developer’s application in January 2018 to discharge this condition.
  9. Mr X chased a response with the complaints team and asked the Council to register his concerns as a formal complaint. The Council said the service area had 15 working days to respond to his letters. Mr X said he had been trying to get a response since November 2017.
  10. After the 15 working days passed Mr X contacted the Council and said he had still not received a response and wanted it to treat his concerns as a stage-two complaint. He then contacted the Council a month later and said the Ombudsman had advised him to write to the Council one more time. He asked for a response to his complaints by 3 May. The Council responded the same day, it said the Ombudsman had already issued a final decision about his complaints and the Council had completed the agreed remedy.
  11. Mr X clarified with the Council that his emails did not relate to the previous Ombudsman decision, he said he was making a new complaint. The Council said it did not receive his previous emails and it only had one complaint letter on file. It asked him if he had received a complaint reference number from any of his emails and that he could now start the complaint process. Mr X said he did not want to start the complaint process because he had been writing to the Council since November 2017. He therefore approached the Ombudsman. We accepted the complaint even though it was premature because Mr X had unsuccessfully tried to complain to the Council.
  12. In April 2018, the developer made another application which the Council classified as a non-material amendment and did not notify Mr X. The developer said it wanted to make all the flats affordable housing, instead of three for private sale. The Council granted permission via delegated authority in May 2018.
  13. In May 2018, the developer also withdrew its previous application to discharge the condition about upgrading the highway.

Analysis

  1. The Council notified Mr X about all planning applications where it had a duty to do so. The Council did not have to notify neighbours about applications to discharge conditions or for the non-material amendment. In any event;
    • Mr X objected to the application to discharge the condition about upgrading the highway; which has since been withdrawn.
    • He told the Ombudsman he does not have any objections about the non-material amendment, but he would have liked to have known about it.
    • The Council has not yet discharged the condition about the CMP and it is aware of his objections through his complaints.
  2. Mr X states the CMP fails to take account of the weight limit on the access road to the site. This is true, the CMP does not mention the weight restriction. But the Council does not have a duty to ensure that it does. This is because the Council does not control the private road and any weight restriction on the road is not a planning consideration. The Council is concerned with public amenities, not whether private rights (or facilities) are protected.
  3. If the developer needs to use 18 ton lorries and the use of vehicles over 2 tons is prohibited, then this is a private matter between the developer and the owners of the road. It may be that the developer cannot implement the planning permission, but that is not the Council’s concern. Mr X may wish to seek legal advice before building work starts.
  4. Mr X also complained that the Council failed to respond to his complaints and correspondence. After reviewing the correspondence, the Council failed to adequately respond to Mr X’s complaints. It mistakenly thought his complaint related to the previous Ombudsman decision which had it resolved. But it was clear from his correspondence it was a new issue and the Council should have provided him with a satisfactory, timely, response.
  5. The Ombudsman would not usually recommend a remedy for poor complaint handling when it has not found fault in the substantive matter. However, I am concerned that our previous, recent, decision also criticised the Council for the same issues. This suggests there could be a systemic problem which the Council needs to address to prevent the same issues from reoccurring.

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Agreed action

  1. In my draft decision, I recommended that the Council should provide complaint handling training to the teams involved and it should feedback to the Ombudsman how it intended to do this. In response to the draft decision, the Council provided evidence to the Ombudsman of its intended complaint handling training for managers. Therefore, I have removed this recommendation because it has been actioned.
  2. In addition to the above and in recognition for the fault identified above the Council has agreed, within four weeks of my final decision, to:
    • Apologise to Mr X for failing to respond to his correspondence and complaints and the time, trouble and frustration this caused him.

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Final decision

  1. The Council was not at fault when it failed to notify Mrs Y about changes to a nearby planning application because there was no requirement for it to do so. Nor does the Council have consider the weight limit on the access road because it is a private matter between the land owners and the developer. But it failed to adequately respond to Mr X’s correspondence and complaints despite previous criticism on this issue from the Ombudsman.
  2. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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