Summary: There is no fault by Durham County Council in relation to this complaint about actions of the Council’s archaeology team.

The complaint

1. The complainant, whom I shall refer to as Mr F, says the Council is at fault in the way it dealt with his involvement in an archaeological survey which was a condition of an approved consent to demolish and replace a single storey extension of a grade 2 listed building. Specifically he says it:
1. failed to respond sufficiently promptly to the written scheme of investigation (WSI) he submitted to the Council following his initial inspection of the building. This detailed what he proposed to do next which was a requirement of the conditional planning consent;
2. it has carried out a vendetta against him for many years including refusing to add him to its list of contractors and then providing an incorrect telephone number when it did add to him to the list for example; and
3. a Council officer “taunted” him about a previous complaint he’d made about the service and stated that earlier agreed action on a complaint had not been completed and that the Council had lied to him.
2. The injustice Mr F claims is the result of the alleged fault is that the building collapsed before it provided a response to the WSI and this meant he was unable to complete a historic survey for the relevant records on this. In addition he says his business has been affected by the Council’s behaviour towards him over several years.

Back to top

The Ombudsman’s role and powers

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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)

Back to top

How I considered this complaint

6. I considered the written information Mr F provided with his complaint and Mr F’s written correspondence with the Council on the matters complained about. I also obtained further information in a telephone discussion with Mr F about his complaint.
7. I gave the Council and Mr F the opportunity to comment on my draft decision. I took account of their comments before reaching my final decision on the complaint.

Back to top

What I found

8. Planning permission is often required for the development of land. Planning permission may be granted subject to conditions relating to the development and use of land.
9. A Written Statement of Investigation (WSI) is a method statement of archaeological works for a site.

Background

10. Mr F has made previous complaints to this office. These include in a complaint in 2013/2014 about the failure to include Mr F’s name on a list of archaeological contractors and harassment including a council officer making unwanted anonymous telephone calls to his business.

What happened

11. In September 2018 the Council gave conditional planning consent for an application to demolish a single storey addition and erect an alternative building. The property was grade 2 listed.
12. The relevant condition stated that the developer could not start development until s/he had arranged a programme of archaeological work in accordance with a written scheme of investigation (WSI) which had been approved by the Council. Specifically it required the submission of methodologies for an Historic England style building record to be undertaken before any conversion work or the removal of fixtures and fittings.
13. The developer employed Mr F’s archaeology company to complete this piece of work. Mr F undertook an initial visit to the building and submitted his WSI to the Council on 5 October.
14. The Council emailed its response to the WSI to Mr F on 15 October detailing one specific amendment that it required to the WSI. This response was provided by email from a previously appointed Single Point of Contact (SPOC) that had been identified to correspond with Mr F.
15. On 17 October Mr F said he would no longer use the SPOC and told the Council that he had blocked the SPOC’s email address. He had not received the email of 15 October.
16. On 26 October Mr F complained to the Council stating he had not received a response to the WSI he had submitted on 5 October and stating that the building in question had collapsed in the intervening period. Mr F told me that the building had collapsed in high winds. He also complained that a request he had made on 11 October to inspect previous work in the relevant historic records had not been responded to.
17. On 14 November the Council provided its response to Mr F’s complaint. The Council confirmed that the SPOC had responded to Mr F’s WSI submission by email on 8 and 15 October. The investigating officer stated that Mr F’s blocking of the SPOC’s email address had resulted in him not receiving the SPOC’s emails of 8 and 15 October. The Council said that a response to Mr F’s request to inspect the Council’s historic records had also been responded to by the SPOC. The Council provided Mr F with the archaeology section’s general email address which it said was checked daily and suggested Mr F could use that in future.
18. On 26 November the Council responded to Mr F’s email of 15 October, and attached a copy of the emailed response to the WSI that the SPOC had sent on 15 October. It commented that this original response was sent within the 10 day target timescale for providing such responses. The officer said that no further emails had been sent to Mr F as Mr F’s decision to block the SPOC’s email address had required some discussion at the Council as to how to manage future communication with Mr F. The Council conceded in this email that other officers had been corresponding with Mr F and said the reason for this was the absence of the SPOC during periods of extended absence. He said that Mr F’s allegations regarding behaviour by Council officers had already been considered by this office and a professional organisation for archaeologists and so it did not address the matter further. Mr F disputes that the matter had been considered by any professional architect body.
19. In December Mr F responded again stating that whilst he had previously stated he had blocked the SPOC’s email address, in fact he had been unable to do this due to technical issues in achieving this. He alleged that the emails the Council said head been sent had not therefore been sent at all. He said he objected to officers stating that his previous complaints had been “baseless”. He went on to specifically refer to complaints he had made in 2015. He asked whether the issues he raised then had been addressed with the officer by his/her manager.
20. On 1 February 2019 the Council responded to Mr F’s request to escalate the complaint to the final stage of the Council’s complaints process. The response stated that the investigating officer was satisfied that the email of 15 October was sent to Mr F. In response to his point that from his email of 17 October it was clear he had not received the 15 October email so someone should have re-sent it, the officer stated the s/he accepted that it would have been “prudent” for a member of Council staff to have re-sent emails that Mr F had not received. Mr F had also complained about having a SPOC. The investigating officer noted that in November Mr F was advised to use the archaeology section’s general email address and agreed that in future Mr F could deal with other officers in the archaeology section.

Was the Council at fault and did this cause injustice?

21. I accept the Council’s conclusion that the email of 15 October was sent to Mr F. I have no grounds to consider it was not and so there are no grounds for me to conclude that the Council did not provide a timely response to his WSI. I accept also, however, that Mr F says he did not receive it even though his attempts to block the SPOC’s email address were unsuccessful. There are no grounds for me to conclude that his failure to receive this email was the result of fault by the Council. I recognise that it would have been better if the Council had re-sent the 15 October email to Mr F when he told the Council on 17 October that he had not received the response. However, I do not consider the failure to do this amounts to fault. And, even if it did amount to fault there would be no grounds for me to conclude that it resulted in the injustice that Mr F claims was the result of the alleged failure to respond to his WSI promptly. This is because there were seven working days between the receipt of the 17 October email and the 26 October when Mr F told the Council that the building had collapsed. This means that, assuming the Council had re-sent the 15 October email on 17 October and the building collapsed on 26 October there was a maximum of 7 days in which Mr F could have completed the amendment the Council had required to the WSI, re-submitted it to the Council, the Council to have responded that it was satisfied and for Mr F to then complete the work in the agreed WSI. I consider completing this in such a limited period of time would have been unlikely. In addition I am unclear what the personal injustice would have been to Mr F.
22. This office has previously investigated and reached a decision on the complaints which I have summarised under b) above so I cannot re-investigate these again now.
23. In relation to Mr F’s complaint that a Council officer “taunted” him about a previous complaint he’d made about the service and stated that earlier agreed action on a complaint had not been completed and that the Council had lied to him, it appears this relates to a complaint made in 2015. As I have stated above we do not ordinarily consider complaints about matters which the complainant has been aware of for more that 12 months and it appears that the action complained about took place around four years ago and that it is reasonable for Mr F to have complained about this before now. In addition, I am not persuaded that Mr F suffered a personal injustice as a result of any failure by the manager to speak to an officer. I note that we have not asked the Council to take any specific action in relation to earlier complaints to this office so this matter does not relate to any failure to take action we have recommended. Further, Mr F has suggested that he wants disciplinary action taken against the officers in question and this is not a recommendation we can make even if we did consider this part of his complaint.

Back to top

Final decision

24. I have completed my investigation and reached a final decision. There is no fault by the Council in relation to the matters Mr F has raised in his complaint.

Back to top

Investigator's decision on behalf of the Ombudsman