Summary: The complaint is on behalf of a leaseholders association about a development next to the site the association represents. The complaint concerns the Council’s approval of a site compound and temporary traffic regulation orders. The complainant says the compound has an impact on some of the properties, has created an unsafe environment which has increased crime and that residents with limited mobility have difficulty in reaching their homes. There was fault by the Council that caused some injustice to Mr B for which it should apologise.

The complaint

1. I refer to the complainant as Mr B. He complains on behalf of a leaseholders association which I will refer to as the association. The association manages a residential development which I will refer to as The Square. His complaint relates to a development next to The Square and the Council’s approval of a site compound and temporary traffic regulation orders (TTRO). He complains too about the way the Council has responded to his complaints and how long it has taken.
2. He says the works compound approved as part of the construction management plan (CMP) has an impact on some of the properties in The Square, has created an unsafe environment which has increased crime and that residents with limited mobility have difficulty in reaching their homes.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

5. If we are satisfied with an organisation’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

6. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

7. The Council granted planning permission for the development of flats and commercial units on the neighbouring site to The Square. There was a condition on the planning permission that required a CMP be submitted. It was to include the siting of containers and a compound to facilitate the construction works.
8. The Council approved the CMP. When work started Mr B complained to the Council about the site compound and the roads that had been closed. There were exchanges of correspondence between Mr B and the Council and Mr B submitted a formal complaint. He did not consider the Council’s response was satisfactory so complained to us.

Approval of the site compound

9. In summary Mr B considered the Council had failed to have any regard to the impact the site compound and containers would have on the residents of The Square. He said it would prevent maintenance and was overbearing and had a significant impact on light to some of the properties. He was also concerned about access for people with limited mobility and that it had created an unsafe environment which increased crime.
10. In responding to Mr B the Council said it did consider the impact the compound structures would have and it considered this location was the one that would have the least impact. When Mr B complained it did try to negotiate with the developer to change the location but the developer would not agree. The Council’s view was that it could not compel the developer to do anything because the structures were in the agreed location and, the most significant point, was that the structures were permitted development. This means that they were covered by the provisions of the General Permitted Development Order made by parliament.
11. The specific provision the Council was relying on refers to the provision of buildings or moveable structures which are required in connection with the construction of the development. The section says that the structures must be on the site itself or on land adjoining that land. Mr B said that the land on which the structures are placed did not adjoin the site itself as there was a road in between. In responding to Mr B the Council said it accepted it was potentially possible that a contrary legal opinion could successfully determine that the structures do not comply with permitted development rights, but it considered they did.
12. It is not our role to decide on the correct interpretation of a document like the permitted development order – that would be something for the courts to decide. We could only say the Council’s position was flawed if it was self-evidently the case that its position was not in accordance with the order. The key point here is whether the land where the structures are located is ‘adjoining’. Adjoining is not defined in the order but it has been held in the Courts that, in planning terms, it can mean ‘next to’ or ‘very near’ and the judgment can be made in a particular case by the decision maker. As the Council has commented, this is something where counter arguments could be made but it is not for me to decide the point. I cannot say there was any fault in the approach taken by the Council.

The road closures

13. The main issue here was that Mr B considered the proper process had not been followed when some of the roads were closed. He said some of the roads had been closed at least three months before the order was made.
14. In responding to my enquiries the Council agreed the road was closed before a temporary traffic regulation order was made. It explained this was due to a misunderstanding by the developer who believed the order was in place.
15. I have two concerns on this point. The original fault in not processing the application and properly informing the developer of the problem. But also that the Council did not identify this from Mr B’s correspondence and then again failed to adequately address the point when responding to his complaint. Even though by that point it must have known that he was right and the order was not in place.
16. In responding on this point Mr B has argued that the way the Council handled the approval of the TTRO was underhand and gives the impression of bias in favour of the developer. He says the Council should have notified the association both because of the impact it would have on The Square’s residents and because he had already been in correspondence about the exact point. He also raised whether it should have been considered a reasonable adjustment under the Council’s Equality Act duties because he had raised with the Council the impact the road closures would have on people with limited mobility. I have not put this particular point to the Council because I do not consider it would alter or add to my view that the Council was at fault in how it responded to Mr B on this point. The Council should have been honest and open in its responses to Mr B about the road closure. This point was only addressed in any detail in the stage 2 response in February 2022 and even then the key point that the road was closed before the order was in place was not recognised.
17. Where there has been fault we have to consider what injustice that has caused. Mr B argues there is no guarantee the road would have been closed if they had been able to challenge the proposal through the TTRO process. I understand Mr B’s arguments but I consider, on the balance of probabilities, that the Council would still have made the order as it was needed for the development to proceed. It is likely that would have been slightly later than the road was in fact closed but I do not consider that to be a significant point. So the faults with the TTRO process, and the responses to Mr B on the point, have not had significant consequences. But it has left Mr B understandably aggrieved with the responses he had from the Council.

Complaint handling

18. Mr B complained on 13 September 2021 and the Council responded on 26 October. He requested his complaint be escalated to the next stage on 17 November. The Council responded on 11 February 2022.
19. The Council’s complaint handling procedure says it will deal with a complaint at stage one in ten days and at stage two within 28 days. The Council exceeded these targets significantly at both stages. The Council accepted there had been delay in responding to Mr B’s complaint which it said was because of staff absences due to COVID-19. It apologised to him.
20. The Council has commented that it recognises it is not meeting its own targets for complaint response times, particularly at stage two of the process. It is setting up a task group to look at complaint handling. This includes the implementation of processes for checking the quality of responses and carrying out formal lessons learned.

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Agreed action

21. The Council will apologise to Mr B for the failures in the traffic regulation order process and in how it responded to him on the point. It will do so within a month of the final decision.
22. A senior manager will carry out a formal lesson learned from this complaint which will include a review of the response on the TTRO process. The Council will share the results of the lessons learned with the Ombudsman. It should do this within two months of the final decision.

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Final decision

23. There was fault by the Council that caused some injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman