Summary: We have found fault by the Council in its handling of planning matters for a site adjacent to Mr X’s property. The Council has agreed to pay Mr X £250 to recognise the injustice caused to him.

The complaint

1. The complainant, who I shall call Mr X, says the Council is a fault in its handling of planning matters for a site adjacent to his property. Mr X says:

• A council officer, Officer A, did not arrange a meeting between him and the applicant to discuss the provision of a barrier between their car park and the access road to Mr X’s property, as agreed at a planning committee meeting. He also says Officer A acted inappropriately and this amounts to a lack of probity in public office and a disregard for the Nolan Principles.
• Councillors did not hold Officer A to account for his actions and failure to arrange the meeting.
• The minutes of the Planning Committee meeting are inaccurate.
• Planning documents relating to the site have been lost or poorly scanned with pages missing

2. Mr X says, because of these failings, the amenity of his property has been permanently affected. He has been put to avoidable time and trouble in pursuing this matter and caused distress and upset. Mr X also says he has been disadvantaged as he feels he has no voice with the applicant or the Council.

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What I have investigated

3. I have investigated Mr X’s concerns about the actions of the Council’s officers, the accuracy of the planning committee minutes and missing or incomplete planning documents. The later part of my statement explains why I have not investigated Mr X’s concerns about the actions of councillors.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
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. 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

7. As part of my investigation, I discussed the complaint with Mr X, considered information he provided including of copies of correspondence with the Council, and copies of planning records for the site. I also had regard to the Council’s response to Mr X’s complaint, listened to a recording of the Planning Committee meeting and read the minutes of the meeting. I set out my initial thoughts on the complaint in a draft decision statement and considered Mr X’s comments in response.

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What I found

The Town and Country (Development Management Procedure) (England) Order 2010, Section 36

8. This part of the Order explains that local planning authorities must keep a planning register and provides details of what it must contain in respect of applications it receives.

The London Borough of Sutton Code of Conduct Complaints

9. If a person wants to complain that a councillor or co-opted member has failed to adhere to the Council’s Code of Conduct, they can submit a code of conduct complaint. This process runs separately from the Council’s complaints procedure.

The Seven Principles of Public Life (referred to as the Nolan Principles)

10. These apply to all public office holders including councillors and council officers and outline the ethical standards they should adhere to. The seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

Background

11. Mr X owns a property which adjoins a property converted to provide healthcare (hereafter referred to as ‘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 southern boundary of the car park.
12. The site has been developed over time with applications dating back several decades. These include an application submitted and approved in 1984 which the Council no longer has complete records of. Subsequent applications have superseded the planning permission granted in 1984 and details of those applications are also incomplete with some documents poorly scanned.
13. In 2018 the owner of the site (‘the owner’) created two areas of additional parking space without planning permission. Landscaping next to Mr X’s property was removed to create one of the areas.
14. At the Council’s request, the owner submitted a retrospective planning application for the works.
15. Mr X objected to the application on the grounds the works:

• were detrimental to the amenity of his property and compromised its privacy and security;
• represented over-intensification of the site; and
• presented a potential flood risk.

16. Mr X explained the new parking spaces could only be accessed by using the access road for his garage. He said cars parking in the spaces overhung into the alleyway preventing use of the access road. This also occurred when the healthcare facility was closed.
17. In support of his objections Mr X presented a petition to the Council. Mr X’s local councillor asked for the application to be ‘called in’. This meant it would be determined by the Council’s Planning Committee and not by officers.
18. The Planning Committee considered the application at a meeting held during the summer of 2019. During the meeting, members questioned officers about the need for a barrier between the car park and access road. A councillor suggested a solution might be to erect a six foot wooden fence. Officer A explained he had been in discussions with the owner who had agreed in principle to a barrier, although the owner told him he did not want something that would encroach on his land. A post and chain fence had been suggested.
19. Officer A also explained that a post and chain fence would prevent overhanging and the access road being used to enter the car park. This would address Mr X’s objection raised in this regard. For this reason, Officer A recommended this option to the Committee.
20. Discussion followed which included clarification of what constituted a post and chain fence. Officer A stressed it was not the type of barrier that was important but what it would achieve. He explained a condition to any approval of the application could not reasonably specify the type of barrier to be used especially as no barrier was removed when the owner undertook the work for which permission was sought.
21. Officer A said that if the Committee was minded to approve the application then the type of barrier could be subject to further discussion.
22. A councillor suggested a condition be attached to any grant of permission where the type of barrier used was agreed by Mr X and the applicant. Officer A commended the idea and said he would mediate between the parties.
23. Mr X addressed the Committee and reiterated his objections, providing photographs to demonstrate his concerns.
24. Following discussion, Officer A said if the application was approved he would convene a meeting to agree a barrier acceptable to Mr X and the owner.
25. Mr X said he would need help with mediation and a councillor offered to assist him. Mr X also said he was concerned a meeting would not happen in practice. The Chair of the Committee assured Mr X that the planning condition would address the purpose of the barrier and the barrier itself.
26. Officer A then advised the Committee it could note his commitment to hold a post decision meeting between Mr X and the owner and hold him to account.
27. The Committee voted unanimously to approve the application subject to a condition requiring details of a barrier be submitted within three months. The barrier should be erected within three months of the details being approved and maintained for the lifetime of the development.
28. After the Committee meeting, it was agreed Officer A would contact Mr X on 12 August.
29. Mr X asked Officer A on 12 August if he had arranged the meeting and he said he was working on it.
30. On 16 August Officer A emailed Mr X a picture of a post and chain fence and asked for his thoughts. Mr X replied he had concerns about its robustness and durability and he foresaw problems if it was damaged and blocked the alleyway. Mr X also raised concerns about Officer’s A management of the negotiations.
31. When on 29 August Mr X asked Officer A for an update he replied he would, for completeness, forward Mr X’s counter suggestion to the owner for comment.
32. Mr X expressed concern Officer A was not managing the process effectively and had not arranged the meeting. He also wrote to the owner with his suggestion. The owner replied saying they would only liaise with the Council’s Planning department.
33. Unhappy with the lack of progress, Mr X complained to Officer A. He also raised the issue of missing documentation for a 1984 application for the site and representations made in 2004 from the then Shadow Health Secretary recommending screening and a wall around the car park.
34. Officer A advised Mr X he met the applicant in July and he considered a post and link chain barrier met the requirements of the condition.
35. Unhappy with Officer A’s action Mr X requested that no further action be taken by him or his department until the issue had been properly dealt with.
36. Mr X then asked his local councillors, the Chair of the Committee and the Leader of the Council to help ensure Officer A kept his commitment to arrange a meeting and mediate between the parties.
37. Officer A emailed Mr X, and copied in the relevant councillors, on 23 September saying a meeting had not taken place because a suitable date could not be found. The email did not contain a full list of Mr X’s availability he had provided to Officer A. Mr X replied saying he felt the response was contrived.
38. Mr X continued to seek the assistance of the relevant councillors but without any substantive success.
39. In December Mr X made a formal complaint to the Council about;
• the actions of Officer A;
• the failure of councillors (the Planning Committee Chair, the Leader of the Council and one of his ward councillors) to hold Officer A to account and uphold the Nolan Principles; and
• the Council’s failure to keep full records of planning applications for the site.
40. Later that month the Council approved a discharge of conditions application for the barrier under delegated authority. It had agreed a post and link chain barrier.
41. In January 2020, the Council replied to Mr X’s complaint. Its response:

• acknowledged no meeting had taken place but questioned if a meeting would have achieved a different outcome. It refuted Officer A was biased or had his own agenda;
• concluded that councillors were apprised of efforts to arrange the meeting; and
• said it had previously addressed Mr X’s concerns about missing documents in its planning records.

42. Mr X was unhappy with the Council response and requested his complaint be escalated. The Council did so but did not alter its position. Its response explained issues relating to the conduct of councillors were not matters for the Council’s complaints process and should be pursued by making a Code of Conduct complaint.
43. Mr X approached the Ombudsman for assistance in March. He also made a Code of Conduct complaint to the Council regarding the conduct of councillors. To date the Council has not responded.

Analysis

Conduct of Officer A

44. It was fault that Officer A did not fulfil his commitment to arrange the meeting between Mr X and the owner. I have seen nothing to suggest there was any valid reason for this and I note the Council provided no explanation in either of its responses to Mr X’s complaint.
45. The purpose of the proposed meeting was to seek a compromise between the parties. Mr X provided Officer A with his preferred option as a starting point for discussion on 4 July. Officer A did not forward this to the site owner until late August. I would have expected Officer A to have forwarded the suggestion to the site owner as a prelude to discussions - and not merely for completeness - at the end of the process as stated in his email of 29 August.
46. I am also aware Officer A visited the owner in July but did not share this with Mr X at the time. While Officer A meeting the owner may have been reasonable, I do not see why he could not have told Mr X. This may have helped commence negotiations and made discussions between the parties transparent.
47. The failure to arrange a meeting or pass on his suggestions supports Mr X’s view Officer A was seeking to implement the minimum fencing solution. I appreciate Officer A was considering the issue from a planning perspective where the provision of the barrier itself and not the type of barrier was key. However, he had undertaken to facilitate discussion between the parties to seek a solution suitable to both. Therefore, he needed to go beyond planning requirements and facilitate negotiation between Mr X and the owner, as he had committed to do at the Planning Committee meeting.
48. Mr X feels he has been disadvantaged and denied the opportunity to secure a barrier that would, in his view, be more robust. We will never know if a meeting would have secured a different outcome but clearly the owner was not inclined to erect any type of barrier that would encroach on his land, as stated by Officer A at the Planning Committee meeting. As this was Mr X’s preferred option, there was a vast discrepancy between the parties at the outset. It is therefore questionable whether discussion between the parties would have led to any significant compromise.
49. If discussions had taken place and ended without agreement, it would have been for officers to decide if the owner’s proposed solution was acceptable in planning terms and met the condition. Mr X would be in the same position as he is in now.
50. I note Mr X says Officer A had an existing relationship with the owner. The Council says Officer A knew the owner because he dealt with another application for another site. On this basis I do not consider that Officer A had a personal relationship with the owner.

Inaccuracies in the Committee meeting minutes

51. Mr X says the minutes of the planning committee meeting are incorrect because they say

“At the objector’s request members agreed that conditions be amended that a meeting would take place between the applicant and the objector within three months to agree the installation of a barrier”.

This is partially correct as Mr X did ask for an extension at the committee meeting to the time allowed for arranging the meeting. However, the minutes do suggest that Mr X asked for a meeting with the applicant which is incorrect as the suggestion was made by a councillor.

Failure to keep full planning records

52. Mr X says the Council has not kept a full copy of a representation made by the former Shadow Health Secretary supporting refusal of an earlier application for the site. The second page of the letter is missing and the first page is poorly scanned. The Council has a duty to keep full and accurate records of the applications it receives but not to keep representations. I cannot find the Council at fault in this specific instance. Nevertheless, I would remind them of the importance of keeping the documents it must retain and properly scanning any documents it decides to keep.
53. Mr X says he has been disadvantaged because other planning documents dating back to 1984 have been lost or scanned incorrectly. I do not agree. This is because subsequent planning applications for the site have been superseded by the later applications and the permission granted to them. Additionally, the Council would not have regard to the representations made on earlier applications for the site when determining new applications.

Agreed action

54. I found fault by the Council for failing to arrange the meeting agreed by members of the Planning Committee as a condition of the grant of planning permission. This caused Mr X uncertainty about the eventual outcome and a loss of opportunity to discuss his other options. It also meant Mr X was put to the avoidable time and trouble of trying to arrange a meeting and to complain when this did not happen.
55. In recognition of the injustice caused to Mr X I recommended the Council pay him £250. The Council agreed.
56. I also found fault by the Council because the minutes of the meeting did not accurately reflect what took place. I asked it to remind staff of the importance of making sure the minutes of committee meetings are written clearly and correctly. The Council agreed.
57. I am aware the Council has not responded to Mr X’s Code of Conduct complaint. It should do so without further delay. The Council agreed to do so.
58. The Council should complete all the above actions within six weeks of my decision.

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Final decision

59. I have ended my investigation of this complaint provided as the Council has agreed to my recommendations. I consider this addresses the injustice caused to Mr X because of the fault I have found.

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Parts of the complaint that I did not investigate

60. The Council is considering Mr X’s complaint that councillors breached the Code of Conduct. If Mr X is unhappy with the way in which it deals with his complaint, he can ask us to consider if there is anything we can and should investigate.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman