Summary: Mrs B complained the Council failed to adequately investigate her complaint of an officer’s conflict of interest. We find the Council at fault for a delay in completing its investigation and failing to keep investigation records. This has caused Mrs B frustration, distress and uncertainty. The council has agreed to apologise and make a financial payment to remedy the injustice caused.

The complaint

1. Mrs B complained she is dissatisfied with the Monitoring Officer’s handling of her complaint. Mrs B says there was a delay in the Monitoring Officer completing the investigation, the investigation was of poor quality and did not consider all parts of Mrs B’s complaint. Mrs B says she has spent considerable time and effort pursuing her complaint and she feels it remains unresolved. Mrs B would like:
• Reassurance the Council has acted correctly and in the best interest of the public and for the Council to be held accountable for any failings.
• The Council to acknowledge the conflict of interest raised in her initial complaint and the impact this had on the planning process.
• The planning application to be rescinded or assurance the extension will be built in accordance with the planning permission.
• The Council to acknowledge the time and effort she has spent pursuing this complaint and the impact this has had on her life.
• The Council to consider an appropriate financial remedy.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. When we find fault, we can recommend remedies for significant personal injustice, or to prevent future injustice, caused by that fault. We look at organisational fault, not individual professional competence. Decisions about individual’s fitness to practise or work are for the organisations concerned, and for professional regulators, not the Ombudsman. (Local Government Act 1974, s26(1) and s26A(1) as amended).
4. 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

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

7. Section 8.1 of the Council’s Officers’ Code of Conduct requires employees to give notice in writing of any financial or non-financial interests which are clear and substantial, and which could bring about a conflict with the Council’s interests.
8. The government has issued guidance on conflicts of interests. When deciding whether a conflict exists, authorities should ask themselves:
• Is it likely that a relationship would lead an officer to act in a way that is contrary to the interests of the authority, and does it impair ability of the individual officer to act objectively and without bias?
• Does the officer have a personal interest in the outcome of the decision? Will they benefit from it?
• Would an informed and reasonable observer conclude there to be a conflict in the circumstances?
• Has the authority acted to avoid the possibility that any potential conflict would have an adverse effect?
9. The Council has a published protocol for the guidance of planning committee members and officers. This protocol is intended as guidance and a statement of good practice for all councillors and officers involved in the administration or operation of the planning process (including planning enforcement). It is not restricted to professional town planners and planning committee members.
10. Part 1.1 of this protocol says one of the key purposes of the planning system is to manage development in the public interest. In performing this role, planning necessarily affects land and property interests, particularly the financial value of landholdings and the quality of their settings. It is important, therefore, that the local planning authority, both planning officers and the planning committee, make planning decisions affecting these interests openly, impartially, with sound judgement and for justifiable reasons. The process should leave no grounds for suggesting that a decision has been partial, biased or not well founded in any way.
11. Under Section 5 of the Local Government and Housing Act 1989, relevant authorities have a duty to designate an officer as Monitoring Officer to ensure lawfulness and fairness of authority decision making. The Monitoring Officer has a specific duty to ensure that the authority, its officers and its members maintain the highest standards of conduct.

Enforcement

12. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
14. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Background

15. In September 2023 Mrs B complained to the Ombudsman that she had discovered an undisclosed personal and business relationship between a Council officer, officer X, and planning agent, which impacted planning applications approved by the Council. We issued a decision in February 2024 which explained we had ended our investigation as the Council’s monitoring officer had agreed to investigate the matter. We told Mrs B she could come back to us if she remained unhappy after the monitoring officer’s investigation was complete.
16. Mrs B’s concerns related to three planning applications which were submitted by the planning agent and officer X provided reports for.
17. The Council approved planning application one in July 2021. This application was submitted by the planning agent and Officer X provided a one sentence email which did not object to the application. The application was approved by a different Council officer under delegated authority. The officer’s report shows they considered officer X’s email in making their decision.
18. The Council refused planning application two in June 2023. This application was submitted by the planning agent and officer X provided a one sentence email which did not object to the application. Following Mrs B’s complaint about a potential conflict of interest the Council contracted a consultant to provide an independent assessment report. The consultant concluded the application would cause ‘unacceptable harm’ which would not be outweighed by public benefit and recommended the Council refuse the application.
19. Planning application three was refused in July 2023. This application was submitted by the planning agent and officer X provided a one page report which did not object to the application. An independent consultant provided a report which advised planning permission should be granted subject to a review of the proposed materials and required conditions.

What happened

Monitoring officer’s investigation

20. Mrs B contacted the Council’s monitoring officer in February 2024 to provide evidence and request a meeting ahead of the investigation. A brief email exchange took place the following day, during which the monitoring officer advised Mrs B she would read the evidence the following week.
21. Mrs B told the monitoring officer she would be on holiday for a brief period, but she was happy to be contacted during that time. The monitoring officer did not contact Mrs B again until the beginning of April. In April, a video call took place between Mrs B and the monitoring officer to discuss the complaint.
22. The monitoring officer also discussed the complaint with three members of Council staff.
23. The monitoring officer issued her report in June 2024. The report found:
• Officer X correctly informed her manager of her relationship with the planning officer.
• Officer X did not affect the outcome of the applications Mrs B raised in her complaint.
• Officer X was not conflicted and acted professionally however it is clear why Mrs B perceives there to be a conflict of interest.
• Officer X should not have prepared the reports in respect of the applications.
24. The monitoring officer’s report says they did not consider the quality officer X’s reports or the impact these had on the planning decisions made. The report says it is not the role of the monitoring officer to investigate service delivery.
25. In July 2024 the Council issued a Freedom of Information response to Mrs B. The Council told Mrs B it could not provide evidence of a written disclosure of officer X’s relationship with the planning agent as there was no written notification. The Council told Mrs B the disclosure was made verbally, but it could not confirm when.
26. In response to our enquiries the Council told us it was unable to provide copies of any records relating to the monitoring officer’s investigation and decision making. This is due to the Council experiencing significant IT issues following a cyber incident which took place in January 2024.
27. During the course of the monitoring officer’s complaint investigation officer X left the Council’s employment.

Enforcement

28. Mrs B raised two issues in relation to planning breaches. The first issue raised was incorrect windows, and the second issue was the height of an extension.
29. The Council emailed Mrs B in October 2023 to explain it had completed an enforcement visit to inspect the windows. The Council confirmed timber windows had been reinstated at its request and that, although they may not be an exact replica of the original windows and the work is not of the highest standard, the Council considered the work satisfied the breach of planning control and it would not be appropriate to serve an enforcement notice.
30. In the same email the Council confirmed that the timber frame in place to construct the extension was higher than the approved planning permission. The Council told Mrs B the owners had been told to reduce the height of the frame to comply with the planning permission. The Council also said it did not consider the timber frame harmful enough to take formal action, but this decision could be reconsidered if the extension was not completed in accordance with the approved planning permission.
31. In response to our enquiries the Council provided a list of dates it attended the property to complete inspections following Mrs B’s report of planning breaches.
32. The Council attended the property for inspection 11 times between November 2021 and November 2023.

My findings

33. There was a delay in the monitoring officer receiving Mrs B’s email and evidence in February 2024 and completing her investigation in June 2024. Mrs B had to chase the monitoring officer for updates. Mrs B was on holiday for a short period but made it clear to the monitoring officer that she could be contacted during this time. I do not consider it reason to delay the investigation. The delay in completing the investigation is fault which caused Mrs B frustration and uncertainty.
34. The Council failed to keep records of its investigation, meaning there is a lack of evidence outlining the monitoring officer’s decision making in relation to Mrs B’s complaint. There is no record of the Council’s decision making process, or the evidence it considered, to explain why it does not believe officer X’s personal and business relationship with the planning agent amounted to a clear and substantial interest which could bring about a conflict with the Council’s interests. Failure to keep investigation and decision making records is fault which causes uncertainty for Mrs B.
35. Mrs B has provided a Freedom of Information request response from the Council which confirms there is no record of officer X providing a written or verbal disclosure of her relationship with the planning agent. This contradicts the findings set out in the monitoring officer’s report. Therefore, I consider the Council’s failure to keep its investigation records has caused Mrs B uncertainty, frustration and distress. This is because there is doubt as to whether the monitoring officer considered the complaint and made their decision properly.
36. The monitoring officer’s report states officer X’s input did not impact the outcome of the planning applications, however the monitoring officer did not consider the quality or impact of the reports. As the Council has failed to provide any records relating to the investigation, it is not clear how the monitoring officer has concluded the Council officer did not impact the outcome of planning application one, which was approved in 2021.This is fault which has caused Mrs B uncertainty and frustration.
37. The Council has completed inspections of the planning breach reported by Mrs B and has considered it duties in relation to enforcement. There is no fault in the Council’s actions in considering the planning breaches and deciding it does not need to issue enforcement notices.

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Action

38. Within one month of the final decision the Council should:
• Apologise to Mrs B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Make a symbolic payment of £300 to Mrs B in recognition of the uncertainty caused by the faults identified.
39. Within three months of the final decision the Council should:
• Ensure its enforcement team and any officers involved in complaint investigations are aware of the Ombudsman’s Principles of Good Administrative Practice and the importance of good record keeping.
• Ensure there is a system in place to keep accurate records of any complaint investigations and Council decision making in the event of IT issues.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman