SPSO Individual Decisions

Mr C complained that the council failed to preserve his free and safe access to a public right of way by refusing to require that the operator of a wind farm remove a number of turbines. He also complained that they failed to ensure that there was an appropriate separation distance between the turbines and the right of way. The council said that they had relocated the pathway to enable it to make use of a surfaced route previously used by the developer during construction of the turbines. They explained that the planning department had consulted the council's access officer who was happy with the position of the path in relation to the turbines. The original path was not a physically defined route and, despite the development of the new path, there was nothing to stop walkers accessing the original route. In addition, they advised that they were unaware of any minimum distance criteria between paths and turbines. Having reviewed the background correspondence, we found that the council's actions were designed to improve public access. We noted their view that the original route could still be accessed and we found no evidence of minimum separation distance criteria between path and turbine. We also noted that the only way to determine whether the council have failed in their legal responsibilities to maintain a public right of way is to make an application to a sheriff. As we found no evidence to suggest that the council acted inappropriately in respect of this pathway and the separation distances between path and turbine, we did not uphold Mr C's complaints. Related reading View Decision Report 201301250 as a PDF (11.3 KB) Updated: March 13, 2018

Mr C complained about the way the council dealt with his complaint about their education services. He also complained that they unreasonably told him that they would no longer correspond with him by email. Having reviewed the evidence, our investigation found that the council had responded to his complaints in line with their procedures. We noted, however, that they had given an incorrect reason for restricting his email contact, and had failed to ask him to reduce the level of email correspondence he was providing before restricting his contact with them. For this reason, we upheld this aspect of the complaint.

A tree next to Mr C's home fell onto his property. Mr C complained that, before this happened, the council failed to take appropriate steps to maintain trees and the footpath. He said they also failed to adequately assess the situation after the incident and did not handle his complaint appropriately. In considering Mr C's complaint, our role was to look at the council's tree management process and assess whether it was applied appropriately. The council are responsible for deciding what processes and procedures to put in place. Our investigation found that the council recognised the potential risk caused by dangerous trees and had appointed professional consultants to undertake a survey which started just over a year before the incident. The trees opposite Mr C's home were assessed but no works were identified as needing done. After the incident, the council confirmed they took professional advice from their tree officer before reducing the heights of the remaining trees. In light of this information, we were satisfied that they had an appropriate policy that they had applied, and we did not uphold these aspects of Mr C's complaint. However, we did find that the council had not properly registered his complaint in line with their complaints procedure and because of that, we upheld this aspect of his complaint. Related reading View Decision Report 201202464 as a PDF (11.22 KB) Updated: March 13, 2018

Mr C complained about the council's handling of his planning application. He said that the application had not been handled in accordance with the scheme of delegation which empowered council officers to make decisions. Mr C felt the application should have been determined at officer level rather than referred to a committee of council members. Our investigation found that the council officer did have the delegated power to make a decision, but was not obliged to do so if he felt that a decision should instead be made by the committee. We found that the council had done nothing wrong in this respect. Related reading View Decision Report 201300339 as a PDF (10.85 KB) Updated: March 13, 2018

Mr C was refused planning permission for an extension to his house and the erection of garages and a shed. He asked for a review of the decision, and this was carried out by the local review board at a site visit. The board decided to uphold the decision to refuse the planning permission. They said this was because the proposal did not comply with the local development plan. The decision notice explained that Mr C had a right of appeal to the Court of Session if he wished to question the decision. Mr C complained to us that there had been procedural fault at the local review board, and that there was delay and failure to handle his complaint in accordance with the council's complaints procedure. During our investigation we found that some of Mr C's complaints had not been through the councils' complaints procedures. In others, we saw no evidence of fault in the council's handling of the matter. He had complained that the local review board failed to discuss relevant information about his development and were inconsistent in their decision to refuse his application, but we found that the council had investigated and responded to this complaint. In terms of his concerns about the decision, the council said that they considered these were matters for appeal to the Court of Session. We are unable to investigate where there is a right of appeal or recourse to the courts. We found that there was no delay by the council in responding to Mr C's complaint, and that it was handled properly under the council's complaints procedure. Related reading View Decision Report 201203053 as a PDF (11.34 KB) Updated: March 13, 2018

Mrs C was unhappy with the way in which the council dealt with her complaint. She said it was confusing; her complaint was not clarified; she was not offered a three stage process to which she said she was entitled; and her allegations about missing documentation were not acted upon. In investigating her complaint, we carefully considered all of the information provided by Mrs C and by the council. A review of the documentation showed that although some of Mrs C's complaints were dealt with under the council's social work complaints procedure, it had been inappropriate to do so as she was not a user of social work services. After that, although she was correctly told that other complaints could not be dealt with under this procedure, she was not advised of the council's standard complaints procedure nor was she signposted to us in the event that she was unhappy with the outcome of her complaint. We noted that the reason that she expected to be able to use a three stage procedure was because some of her complaints had incorrectly been put through the (three stage) social work complaint procedure. Our investigation went on to find that the terms of Mrs C's complaint were confirmed with her; that the council were unable to disclose all the available information to her in accordance with the Data Protection Act and that the offer of a meeting that had been made still stood. Therefore, while we upheld Mrs C's complaint about lack of proper advice about the complaints procedure, we did not uphold her other complaints.

In 2005 the council granted planning consent for a developer to build 45 houses in a field in Mr C's village. A condition of the consent required the developer to submit a proposal to provide children's play facilities, and for any approved proposal to be implemented by the time the tenth property was occupied. Mr C complained that, although the development was almost completely built, no new play facilities had been provided. Rather, the council had accepted a payment from the developer to help improve an existing play area. Mr C said this decision was contrary to the planning conditions. He also felt that the council failed to consult with the local community about the developer's proposals, and a change in council policy that allowed the use of such contribution payments. We were satisfied that the wording of the planning condition did not specifically require a new play area to be provided, and allowed for the improvement of existing facilities. We also found that new supplementary planning guidance specifically encouraged the use of contribution payments to improve existing facilities, as this was considered to provide better value than building new ones. Matters had also been complicated by the developer going into administration. In the circumstances, we felt it was reasonable for the council to consider other options, such as contribution payments, to ensure that play facilities were provided. We were satisfied that the local community was consulted on the introduction of the supplementary planning guidance that led to the introduction of contribution payments as a means of improving existing facilities. We noted, however, that the tenth house had become occupied a few years ago. The developer should have had their proposed new play area in place by that time and we considered that the council could have taken enforcement action to ensure it was built. We recognised that enforcement action is a discretionary matter and the end result may not have

Mr C lives close to a church building which had fallen out of use. It had been the subject of unsuccessful planning applications for conversion and change of use to flats. In late 2009 a successful application was made to convert the building to a crematorium. Mr C and his wife did not live close enough to the building to be notified about this application. In the autumn of 2011, however, Mr C became aware of the provisions of the Cremation Act 1902 (the Act), which stipulate that no new crematorium should be built closer than 200 yards from the nearest house or 50 yards from a public road, without the permission of owners and occupiers. Mr C complained to the council, saying that they had failed to have proper regard for the Act in granting planning consent for the conversion and failed to protect Mr C's residential amenity; unreasonably delayed in dealing with his complaint, and unreasonably failed to answer his questions about their response to a Scottish Government consultation on the Act. After seeking independent advice from our planning adviser, we found that the council, with qualification, were entitled to decide that the distance stipulations were not relevant to the granting of planning consent as they formed part of a different regulatory framework. There was also no evidence that the amenity of residents was disregarded when determining the application, and we did not uphold these complaints. We found that there had indeed been a delay in dealing with Mr C's complaint (but the council had apologised) and that they had neglected to answer his query about the council's consultation response. That issue was resolved by a senior officer explaining an apparent inconsistency. We, therefore, upheld both of those complaints, but made no recommendations. Related reading View Decision Report 201104874 as a PDF (11.56 KB) Updated: March 13, 2018

Mr C complained that the council granted planning consent for a house on land next to his home. He stated that when the building began it was found that the new property had been built 1.4 metres closer to his property than had been approved. This raised concerns about overlooking from the upper windows of the new house into the lower windows of Mr C's property. To address this concern, one of two windows on the elevation facing Mr C's property was removed and a retrospective planning application was granted. Mr C raised concerns that the overlooking of his property from the remaining window had not been reasonably acknowledged or addressed in the council's revised report to the planning committee. He complained that the report was misleading because it did not reasonably acknowledge the council's guidance about the recommended distances between windows at the relevant angles to each other. In their response, the council told him that they were satisfied the report was not misleading. Mr C also complained that the council's responses to him were inaccurate as they said that a new property had been built further from Mr C's property than the plans approved, and that they had wrongly stated in another letter that the lane between the two properties was a public road. We took advice from one of our planning advisers, who considered the relevant policies and guidance. This included the council's own relevant supplementary planning guidance, which gives the council and its officers a significant degree of discretion in applying these standards. The council followed the decision-making process correctly and the developer's action complied with the council's request. As the correct procedures were followed, we cannot question the merits of the revised planning decision. Our adviser said that he did not find the report misleading and found no evidence of inaccurate dimensions (or descriptions) in it. He said the dimensions outlined in the council's letter to Mr C also appea

Since 2007 Mr C has run a concrete business from a yard owned by his brother. In 2006 his brother objected to a planning application for four houses on a site adjoining the yard. The application was refused but was granted conditional consent on appeal and the housing development was begun. In 2008 Mr C placed a cement silo in the yard. The occupant of the house nearest to the yard told the council about this. The council inspected the site and asked Mr C to apply for planning consent, which he did. However, it was refused. The council then served an enforcement notice on Mr C telling him to remove the silo, but neglected to serve the notice on Mr C's brother. Mr C appealed against the refusal of planning consent and the enforcement notice, but his appeals were dismissed. Mr C then instructed a planning consultant, who pointed out that the enforcement notice had not been served on Mr C's brother, and was successful in having the decision notice quashed in the Court of Session. A possibility remained that the council could re-serve the enforcement notice. However, after eighteen months of correspondence with Mr C's consultant on whether planning consent for the silo was actually needed, the council said that they did not consider that pursuit of enforcement action was in the public interest. Mr C complained that the council handled the planning application for the houses inadequately and that it was inappropriate for them to have taken enforcement action. We did not uphold the complaint in respect of the residential application. We did, however, uphold the second complaint. While we did not find it inappropriate for the council to exercise their discretion, firstly to take enforcement action and then, more than two years later, to decide not to, we found that the processing of the application was flawed as the council did not follow a robust and correct process.

Mr C complained about the existence or otherwise of planning consent in respect of aggregate recycling activities (AR) adjacent to a housing development. This complaint was originally made against the council on behalf of a residents association. The council said that recycling activities did not require planning consent and this was the reason there was no planning consent in place. In 2008 the council had said that planning approval was not required as the necessary consent was contained in planning consent granted in 1985. However, Mr C refuted this and said AR was being carried out on land that under previous planning consents should be maintained as agricultural land for animal grazing purposes. He said that the AR was a commercial activity, unrelated to household materials and composting activities, and that planning consent should have been sought. He acknowledged that efforts had been (and continued to be) made to minimise the disturbance and nuisance caused by AR, but he said these did not address the key complaint and he wished the AR activity moved. Mr C also complained that the council delayed in responding to his complaint and had not established the facts or dealt with it appropriately under their complaints procedure. This matter was complex and during our investigation we made several enquiries of the council. The complaint was also considered by one of our planning advisers. We did not uphold Mr C's complaints. The passage of time from 1985 to 2011 combined with the loss of part of a file made it difficult to evidence Mr C's view that AR activities (by the definition and degree as outlined in this case to be classed as ancillary) required planning consent that does not exist. We found evidence that the council had addressed Mr C's concerns about AR – although we acknowledge, not to his satisfaction. We considered that the council exercised professional judgement in this matter and relied on the 1985 consent as being applicable to current AR activiti

Mr C is one of a group of neighbours in dispute with the council over the status of a road that serves both their properties and the site of a house recently granted planning consent. They said that the road and verge were not adopted by the council and that a road widening scheme that was required before construction of a new property could not be accommodated. They also said that the council have not addressed their concerns over road safety, that a turning area they consider is required to allow for refuse lorries etc is not adopted, and that, as owners, they would not consent to it becoming adopted. The council confirmed that the road in question is recorded on their lists as being adopted and that this includes the verge. They have also responded to a private report obtained by the neighbours from a roads consultant which raised concerns about the road scheme. This report, along with the neighbours' concerns, was submitted to the planning committee when they considered the application. The council accepted they were mistaken in their view that the turning area was adopted but explained that, as this should have been adopted when neighbouring houses were being constructed, they would not take steps to adopt this area of road. We considered the concerns raised by Mr C. We could not determine the issue of the adoption of the road or verge as this can only be determined in court. We found that the council had considered the safety concerns of neighbours, although we appreciated that the neighbours did not agree with the council's view. We also considered that the council could not stop the developer from proceeding with their development prior to satisfying the neighbours of the legal status of the road. As a result of this, we did not uphold the complaints. Related reading View Decision Report 201102686 as a PDF (14.45 KB) Updated: March 13, 2018

Mr and Mrs C reside within a B listed building which had been divided into four flats. They complained that the council failed to properly handle a number of planning applications submitted in relation to one of the flats within the listed building. In particular, they complained that the applicant had submitted what they regarded as a less contentious application followed immediately by a variation; that the council had accepted a report on the water supply which had been prepared by the applicant's agent and that the council unreasonably accepted plans which were inaccurate. Our investigation found that the council had considered the points Mr and Mrs C had made in their letters of objection about the planning applications and that there was no evidence of fault on the part of the council in the processing of the applications. They had also acted reasonably in accepting a report prepared by the applicant's agent. It was normal practice for information to be submitted by a suitably qualified professional to provide 'independent' advice, notwithstanding that he/she was appointed by the applicant. Any report would be scrutinised by the council during consideration of the application. We also found that the accuracy of the plans had been considered during consideration of the application. As we did not find evidence that the council had failed to follow the proper processes and procedures in their handling of the applications we did not uphold the complaints. Related reading View Decision Report 201100927 as a PDF (14.22 KB) Updated: March 13, 2018

Mr C's daughter was a candidate for the Scottish Qualification Authority (SQA) Higher physics examination in May 2010. In early 2010, she obtained a B grade pass in the school’s preliminary physics examination and had targeted the same grade in the final Higher examination. In the event, Mr C’s daughter attained a C grade pass in the Higher examination, and the school submitted an appeal on behalf of Mr C’s daughter and another student in August 2010. Both appeals were dismissed and the results stood. In returning the appeals, the SQA provided two reasons for their decision, both relating to the validity of the school’s preliminary examination. Mr C submitted subsequent complaints against the SQA and the council (as education authority). He complained that the council failed to provide him with a clear explanation of the reasons why the Higher physics preliminary examination in 2010 did not meet the SQA's criteria. In response, the council advised that they considered that the school preliminary examination was adequately moderated and did not accept the SQA’s explanation. The investigation considered that the council were entitled to take that view and the complaint was not upheld. Related reading View Decision Report 201004978 as a PDF (14.09 KB) Updated: March 13, 2018

Mr C complained to us about how the council have dealt with delay by a developer in forming a new access road and approving a landscaping scheme for a farm development. The council refused an application by a developer for planning permission for the erection of new agricultural buildings, the repositioning of some existing agricultural buildings and the formation of a new farm access road. The developer appealed to the Directorate for Planning and Environmental Appeals (DPEA). The appeal was successful, and planning permission was granted subject to several conditions, a number of which related to the formation of a new access road and a landscaping scheme. Although the new farm complex has been implemented and is now operational neither the new access road nor the landscaping scheme has been completed. Mr C complained that as a result of this, traffic and heavy lorries access the farm using the road which runs in front of a row of former farm cottages where he resides. Our investigation found that the council are limited in any action they can take to ensure that the developer implements these conditions, because of limitations of the wording of the conditions imposed by the DPEA Reporter, which are ineffective. There was, therefore, no evidence of failings on the part of the council in relation to the matters complained about. However, we have brought our findings on the complaint to the attention of the DPEA, so that they may take account of this when framing conditions in future. Related reading View Decision Report 201005258 as a PDF (14.39 KB) Updated: March 13, 2018

Mr C complained to us that the council had not thoroughly investigated his complaint against a school. He was banned from voluntary activity at the school after a discussion with a teacher in which he was perceived to have acted aggressively. He was not happy that after the formal investigation, the council took no further action, except to offer mediation in an attempt to rebuild Mr C's relationship with the school. Our investigation found that the council had adhered to the relevant guidelines in dealing with such matters and had fully considered Mr C's concerns. Related reading View Decision Report 201004919 as a PDF (13.4 KB) Updated: March 13, 2018

Mrs C complained that, when she complained about her son’s deputy head teacher, the council’s education department failed to conduct a fair investigation or to handle the complaint within a reasonable time. She also said that they did not give her enough information about the outcome of their investigation into her complaint. From our enquiries it became apparent that a better approach to investigating Mrs C’s complaint would have resulted in a more timely response. While we were concerned about the council’s handling of Mrs C’s complaint, we did not find any evidence to support her claim that the conduct of the investigation was unfair.