Summary: Mr X complained about the location the Council chose to build new public toilets and about a lack of public consultation. The Ombudsman found the Council was at fault for not holding public consultation. However, this failure did not affect the outcome.

The complaint

1. Mr X complained for himself, and on behalf of a local resident’s group, about the location the Council chose to build new public toilets. He said the Council made its decision without any consultation and despite local opposition. He complained the process was undemocratic and residents were ignored.

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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. (Local Government Act 1974, section 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. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
• The Town and Country Planning (General Permitted Development) (England) Order 2015.
• The Council’s Constitution.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

6. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
7. Not all development requires a planning application to be made. In some cases, development will be permitted under national permitted development rights. Permitted development rights are subject to conditions and limits to control the impact of development and to protect local amenity.
8. Local authorities may build or alter any small ancillary building on land they own or maintain, for the purpose of any function they exercise, under permitted development rights.
9. According to the Council’s website, it aims to consult the public on any large changes to policy, strategy, or change in service provision.
10. The Councils constitution sets out that all decisions it takes will be made in line with the following principles:
• Proportionality
• Due consultation and taking of professional advice.
• Respect for human rights.
• A presumption of openness.
• Clarity of aims and outcomes.
• Due regard for the individuals and communities it serves.
11. The Council’s Cabinet is made up of elected members. It meets to make decisions on Council resources and priorities.
12. The Council’s Scrutiny Committee can look at decisions taken by the Cabinet and make recommendations to it.
13. The Ombudsman is not an appeal body. Our role is to review the process by which decisions are made. We will not come to a view on the merits of the decision unless we find evidence of fault in the way the Council made its decision.

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What happened

14. I have summarised below some of the key events relevant to Mr X’s complaint. This is not intended to be a detailed account of what happened.
15. Mr X, and other members of the local resident’s group he represents, live adjacent to a beach front.
16. In July 2019, the Council’s new administration asked officers to look into providing more toilets at the beach front where Mr X lives.
17. The Parish Council contacted the Council about its plans in August. The Council confirmed it was looking at the project and officers attended a Parish Council meeting to present their early views on 19 September.
18. A resident emailed the Parish Council on 14 September stating toilets should be considered in another area first, because the beach front already has public toilets nearby, plus toilets in cafés and shops. They said any plans should not go ahead without consulting residents. The Parish Council shared the resident’s comments with the Council.
19. An officer emailed the resident on 7 October to confirm they attended a Parish Council meeting as part of the Council’s early consultation. They said the toilets were needed due to an increase in visitors, it is a long walk to the existing toilets, and the public had often asked for more.
20. The resident replied on 13 November, asking for evidence in support of the claim the toilets were needed due to increase in visitor numbers.
21. Council officers drew up a proposal document for the new toilets in November, discussing the positives and negatives of five possible locations, A to E. At that stage, officers considered options A and B were the most viable. Options C to E would need macerators, meaning high monthly costs. However, location A was thought not to have good access, especially for disabled users and buggies. Location B was considered the best option based on access, cost, and being able to join with the existing water and sewage system. Officers noted this location may attract objections from nearby residents and careful site location was needed to avoid direct line of site views.
22. There were internal discussions between some Council Cabinet members during November and December 2019. Officers then updated the leader of the Council and its senior management team at a meeting on 23 December.
23. The Parish Council discussed the Council’s proposal document at their public meeting on 9 January 2020. The Parish Council preferred locations C and E, as they were most central. It sent its views to the Council by email on 13 January.
24. The Council sent an email to the Parish Council on 13 January, responding to the resident’s question about visitor numbers. It confirmed there is no specific document or report about the need for the toilets. Indications came from research as part of the visitor economy framework which is available on the Council’s website. The Council has also seen more events being hosted at the beach front and staff gave anecdotal reports about increased numbers. The Council explained the new administration wants to improve public facilities to benefit the areas development.
25. The Council selected locations B and E to take forward to the tender process. The locations were renamed location A (formerly location B) and location B (formerly location E).
26. On 28 January, the Council launched its tender process, inviting contractors to provide quotes for the cost of building the new toilets at the two sites the Council selected.
27. The Council issued a press release about the toilet project on 20 April, ahead of its Cabinet meeting.
28. The Council’s Cabinet met on 22 April to consider a report on the new toilet contract. The report confirms the Council considered five locations. Three involved high installation and maintenance costs, two could impact on visual amenity. The Council took two locations forward to tender, locations A and B. Tenders for location A were cheaper.
29. A Cabinet member highlighted the lack of public consultation and another sympathised with objectors to location A due to its impact on their view.
30. The member presenting the report said the Council will build the toilets under permitted development rights, so did not need public consultation. He said the Council could lessen location A’s negative impact on visual amenity through design, including a green sedum roof, with sea facing doorways.
31. Cabinet voted to agree to location A.
32. Some councillors had concerns about the Cabinet’s decision and made a request for it to be considered by the Council’s Scrutiny Committee on 30 April. They said the public were not consulted, the views of the Parish Council were not mentioned, and the tender with the highest score was not selected.
33. The Scrutiny Committee met on 20 May to discuss Cabinet’s decision. It recommended for Cabinet to reconsider its decision. It said the views of ward councillors should be considered by Cabinet and formal public consultation should be carried out. The Council should then run the tender process again.
34. The Cabinet met again on 3 June to consider the Scrutiny Committee’s recommendations. It considered whether to continue with the chosen location. One member saw no reason to change the location and said public consultation was not needed and would likely only capture views of those living nearby, not visitors who will benefit from the location. Another member felt the Scrutiny Committee wanted to consult on impossible locations, and the chosen location was the only viable option.
35. The Cabinet leader confirmed he received objections from the public. However, he summed up by saying the beach front was vital to visitor economy and facilities were long overdue. He recognised the opposition but said the site was challenging. Cabinet had been presented with two choices. The second location was fraught with issues. He said the Scrutiny Committee should have addressed the technical and financial issues of the second location. Cabinet decided to confirm its previous decision made on 22 April.
36. On 5 June, the Council awarded the contract for the new toilets at location A after the Cabinet’s decision.
37. Mr X complained to the Council on 16 June 2020 about how it reached its decision to select location A for the public toilets. He said:
• Residents had no notice about the plans and heard about it by chance from a local councillor. He said this was appalling for such a sensitive issue affecting residents.
• Residents sent objections to the leader of the Cabinet the day before the cabinet meeting, suggesting the benefits of siting the toilets in the car park, but were ignored.
• Local news sources suggested a councillor knowingly gave false information to Cabinet about canvassing local residents but receiving no objections.
• Local residents have been denied natural justice by not having the chance to have their views heard.
38. He asked the Council to investigate and asked why it did not consult or listen to local residents. He also asked why the Council did not listen to local councillors at the scrutiny meeting.
39. The Council responded to Mr X’s complaint on 3 July 2020. It said:
• Both Cabinet meetings were conducted in line with the Council’s constitution and its decisions were transparent.
• Formal public consultation was not needed. Cabinet and the Scrutiny Committee discussed the difficulties around holding public consultation. The Council issued a press release and engaged with the Parish Council, and Cabinet members received feedback from residents when they first made their decision.
• It did not agree residents’ feedback was ignored. Members had regard to and commented on residents’ feedback at all stages. It said residents’ suggestions had already been considered earlier but were found to be unworkable, for technical reasons.
• It listened to recordings of both cabinet meetings and was satisfied the councillor did not say he had canvassed residents and found no opposition.
• The scrutiny committee had a full debate before deciding what points to send back to Cabinet. Ward members were present and spoke at the meeting.
• It was satisfied it made its decision properly and lawfully.
40. Mr X remained unhappy at the way the Council made its decision to go ahead with location A, and at the statement of a councillor that he had canvassed residents and found no opposition. He asked the Council to consider his complaint at stage two of its procedure on 23 July 2020. He also raised issues about drainage and disabled access at location A.
41. On 5 August, Mr X wrote to the Council’s Chief Executive on behalf of the local resident’s group. He said:
• They supported a toilet at the eastern end of the beach front, but not in the location chosen. He said there is overwhelming resentment to the Council’s decision to locate a public toilet where it chose to. He referred to an email he sent before the scrutiny meeting on 3 June which lists the drawbacks of site A.
• The media reported the Council’s decision was based on wrong information and passed by a slim majority of councillors unfamiliar with the area. He said the group have reconsidered the location and took professional advice, and they think the car park is the best choice. He said it would only cost the Council an extra £10,000.
• More than 500 people have signed a petition objecting to the chosen location and asked the Council to engage with the group to achieve an amicable result.
42. The Council sent its final complaint response on 7 August 2020. It said:
• Members had regard to residents’ feedback at all stages and made comments within the Cabinet meetings.
• Scrutiny Committee extensively debated the decision, with several Cabinet and Ward members present, and every conceivable concern was aired. The Committee had a full debate before deciding which points to refer to the Cabinet. Cabinet members received resident feedback when they took their decision.
• Drainage issues are part of the project itself and are not planning issues. Southern Water will consider drainage issues. Even if the Council chose the other location for the toilets, the drainage connections would be in the same place.
• It considered the car park location was worse for disabled access than the chosen location and not all beach users park in that small car park. All works carried out will meet disabled requirements. Following resident feedback, the Council changed the position of the toilets slightly to improve disabled access.
43. Work on the new toilets started on 10 August. Mr X brought his complaint to the Ombudsman on 12 August.

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Response to my enquiries

44. The Council told me it recognises the location of the new toilets was a controversial decision. It said it consulted the Parish Council and Cabinet members. It did not carry out public consultation because it did not consider this would have produced balanced views.
45. It said the Cabinet leader did not ignore residents. He did not consider it was correct to email residents before Cabinet met and took its decision. He did respond on several occasions after the first Cabinet meeting. He also engaged with residents throughout the Scrutiny period and final Cabinet decision.
46. While the Council accepts there were issues in how it consulted with local Ward members, it said there were multiple opportunities for them to have input in the process.
47. The Council said Cabinet members were aware of local opposition when making their decision, but decided based on the technical, financial, and operational benefits of the chosen location.
48. The Council told me it moved the final location of the toilets when on site works started. They are now further away from houses and lower down, close to one of the Parish Council’s preferred locations. It plans to have more planting to soften the visual impact.

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Analysis

49. Part of Mr X’s complaint is that the councillor who presented the project to Cabinet said he canvassed residents but found no opposition to the plans. I have seen no evidence from the reports or minutes of the Cabinet meetings to support this. However, at the Scrutiny Committee meeting the councillor did say he spoke to residents while at the site and their views on the preferred location were split. Unfortunately, I found no further evidence about this. The councillor did not go into detail about where the residents lived, whether they supported the project, or what their preferred locations were. This is something it would have been useful to see in the councillor’s report to the Cabinet.
50. On the evidence I have seen, the Council did consult the Parish Council. Officers attended a Parish Council meeting and considered their comments about their preferred locations. There was not direct consultation with any individual Ward councillors, but some attended the Parish Council meeting so were aware of the plans.
51. It is unfortunate the report to Cabinet did not refer to the comments from the Parish Council. However, the evidence I have seen shows why other locations were not feasible or suitable. This included the locations preferred by the Parish Council. The Council had concerns about access, costs, and environmental impact of the rejected locations. They are genuine and valid concerns the Council was entitled to consider.
52. The Council recognised the process could have been better. I consider the Council should have consulted residents, despite its concerns about how difficult consultation may be, or how useful the responses would be. Residents had a right to know about the plans. It was a running theme in the Cabinet and Scrutiny Committee meetings that councillors raised concerns about lack of public consultation. This was one reason several councillors asked the Scrutiny Committee to consider the matter. That shows, despite it not being a duty or requirement for the Council to consult, councillors expected the Council to hold public consultation in circumstances such as these.
53. The Council’s website and its constitution talk about openness, due regard for individuals and communities, and having suitable consultation on key decisions. I consider the process here fell short of those aims and amounted to fault.
54. In response to my draft decision, the Council told me it plans to develop a consultation policy in the near future. This is welcome.
55. While I appreciate how frustrating it must have been for Mr X and other residents, I have not seen evidence the Council’s failure to consult the public affected the result. The evidence I have seen shows the Council foresaw and considered residents objections about visual amenity when it made its decision. The Council properly considered each possible location and explained the reasons it chose location A. Those reasons related to costs and technical issues. I consider it is unlikely public opinion would have altered those factors.

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Final decision

56. I have completed my investigation. The Council was at fault for not holding public consultation. However, I have not seen evidence this failure affected the outcome.

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Investigator's decision on behalf of the Ombudsman