7 Dec 09 - BSCF contacts Ombudsman following EHDC's refusal to investigate complaint
Letter to the Local Government Ombudsman
Correspondence with EHDC leading up to this letter to the ombudsman: Link
The Local Government Ombudsman
PO Box 4771
|7 December 2009|
COMPLAINT AGAINST EAST HERTS DISTRICT COUNCIL
1. I am writing on behalf of the Bishop's Stortford Civic Federation to ask you to investigate a complaint we have made against East Herts District Council (EHDC) which they have twice declined to investigate. EHDC have not replied to our letter of 2 December (sent by email and post) and we have therefore concluded that there is no remaining avenue through which we might pursue our complaint through their internal procedures. This letter sets out in summary form the basis of our complaint. A supporting Annex provides the documentation which supports our arguments.
2. Our complaint arose from disclosures made under the Freedom of Information (FoI) Act about discussions which have been taking place during 2009 between EHDC’s Head of Planning and Building Control and Messrs Vincent and Gorbing, who are acting on behalf of Herts County Council, two foundation secondary schools and a commercial property developer. The discussions concern proposals to relocate the two schools to a Green Belt site on the edge of Bishop's Stortford and to finance the move by developing the vacated schools sites for housing, together with a site acquired by the County Council for educational purposes some 30 years ago. Of course, we do not expect the Ombudsman to express any opinion on the proposals themselves. The basis of our complaint is that the procedures followed by EHDC and the content of these discussions have contravened the Government Guidelines 'Positive Engagement, a Guide for Planning Councillors' and the policies in the adopted local plan.
3. We wrote to EHDC’s Chief Executive on 16 November, setting out our concerns, requesting an investigation, and asking for our letter to be treated as a formal complaint. EHDC replied on 19 November refusing our requests. We wrote again on 25 November, giving a further explanation of our complaint, and asking that the Council’s Monitoring Officer investigate it. EHDC replied 26 November, claiming that the performance of his duties by a member of staff did not fall within the Monitoring Officer’s remit and again refusing our request that the subject matter of our complaint be properly investigated. We therefore feel we have no choice but to ask for your assistance in this matter.
4. It will be convenient to set out our complaint in two parts – the initial complaint about the conduct of the Head of Planning and Building Control and, as a separate issue, the handling of the complaint by EHDC once it was received.
The Conduct of the Head of Planning and Building Control in Pre Application Discussions
- The proposals under discussion would mean setting aside national and local Green Belt protection policies and would involve four major departures from the adopted local plan. EHDC do not dispute that this would be the case.
- A previous attempt to redesignate part or all of the site for development within the local plan was rejected in 2007 by a Government Planning Inspector. In 2008, planning applications for the proposals were recommended for refusal by EHDC’s planning officers, leading to the applications being withdrawn. Yet in 2009, we believe that the evidence shows the Head of Planning and Building Control actively encouraging the promoters to submit a fresh application which in its essentials would not be materially different.
- In seeking to justify his conduct, EHDC have relied upon the Government guidance document ‘Positive Engagement, a Guide for Planning Councillors’. They have not disagreed that, where appropriate, the guidance is equally applicable to the conduct of officers.
- This guidance says unambiguously that those involved in pre application discussions should ‘Stick to policies included in adopted plans but also pay heed to any other considerations relevant to planning’ The evidence shows that the Head of Planning and Building Control did not follow this guidance.
- The guidance says
‘Keep a note of meetings and calls’
Four meetings took place with the scheme promoters without any record being made of who was present or what was discussed.
- The guidance says
‘Do recognise the distinction between giving advice and engaging in negotiation’
‘Do not meet developers alone or put yourself in a position where you appear to favour a person, company or group – even a ‘friendly’ private discussion with a developer could cause others to mistrust your impartiality.’
‘Be aware of what predisposition, predetermination and bias mean in your role’
The Civic Federation believe that, taking together the active encouragement of proposals which would be contrary to Green Belt policy and the adopted local plan, and the failure to record meetings with the scheme promoters, the Head of Planning and Building Control has also failed to heed these aspects of the guidance.
- The Civic Federation believe that this course of conduct falls well outside the limits of discretion which planning officers might be expected to observe at pre application discussions; that the ability of the Planning Department to offer impartial advice will be compromised if an application is made which they have already shown a predisposition to favour; and that the discretion of the Development Control Committee to refuse planning permission would be fettered if that application had the support of Officers.
EHDC’s Handling of the Complaint
- EHDC’s responses to our complaint rely on assertion alone, and have entirely ignored the reasoned arguments which we put forward to support our concerns. Although they rely on the Government guidance referred to above to justify the officer’s conduct, they have not dealt with any of the points where his conduct appears to have contravened the guidance. They have not dealt with our concern about the impact on property owners if the adopted local plan cannot be relied upon. They have twice refused to carry out an investigation.
- EHDC’s assertion that an officer’s performance of his duties falls outside the remit of the Council’s Monitoring Officer appears to be without foundation. Section 5 of the Local Government and Housing Act 1989 explicitly includes the actions of officers within the scope of the Monitoring Officer’s reporting functions.
- EHDC do not appear to have given any guidance to officers about the approach to adopt or the limits of their discretion in engaging in pre application discussions. Their code of conduct for officers does not appear to have anything relevant to say on the matters we have raised, and EHDC have not drawn our attention to any other material which might be relevant.
- We do not accept EHDC’s claim that the officer’s approach in no way prejudges any eventual planning decision. Section 10 of the Local Government Association publication ‘Probity in Planning’ places a heavy burden on members of the Development Control Committee to justify any decision which is contrary to Officers’ recommendations, and if their decision leads to an appeal, the appellants as a matter of course use Officers’ recommendations in support of their own case.
- We are concerned with EHDC’s assertion that
The Council is more than satisfied that the Head of Building and Planning Control has followed the pre application process in a proper manner.’
This assertion was made in the absence of any investigation and suggests a lack of due process in the understanding and handling of our complaint.
5. As yet, no revised planning application has been submitted. The Civic Federation hope that this will not dissuade you from investigating our complaint. As you may have gathered, the proposals are extremely controversial locally. We therefore expect the Council’s Officers to show that they have displayed the highest standards of propriety in their dealings with the scheme promoters. In our view, the evidence shows that this has not occurred, and it is a matter of urgency that the situation is remedied before any fresh application comes before the Development Control Committee for decision.
6. We have copied previous correspondence about this complaint to Bishop's Stortford Councillors and to the Herts and Essex Observer because of the important public interest issues raised. We are giving this letter and enclosures the same circulation as before as well as sending a copy to the Chief Executive of EHDC.
Bishop's Stortford Civic Federation
Annex - Evidence in Support of the BSCF's Formal Complaint Top
EVIDENCE IN SUPPORT OF THE CIVIC FEDERATION'S FORMAL COMPLAINT
Evidence in Support of Bishop's Stortford Civic Federation’s Complaint
Pre Application Discussions
1. The Civic Federation’s complaint arose from disclosures made under the FoI Act on 4 November 2009. Attachment 1 is the note covering EHDC’s response and shows that four meetings took place between EHDC planning officers and the scheme promoters in 2009 up to the time of the information request, and that no notes were made of any of the meetings. Attachment 2 comprises the email exchanges provided under the information request. We have had to infer what was discussed at the meetings from these emails, although the last meeting – the Design Review Day – post dates the last of the emails.
2. The Civic Federation’s complaint of 16 November is Attachment 3. The whole of Attachment 2 was enclosed with the letter. The Civic Federation chose to publicise this complaint because of the important public interest issues at stake. EHDC’s reply is at attachment 4. A shorter version of this – Attachment 5 – was sent by their Chief Executive to the Herts and Essex Observer.
3. The Civic Federation’s renewed request for an investigation dated 25 November is Attachment 6. The Annex to this letter gives further detail of the matters which most concerned us about the information disclosures. EHDC’s reply of 26 November is at Attachment 7, and our response (sent by email and post to EHDC) is at Attachment 8. Since we have received no reply and our request for an investigation has already been rejected twice, we have concluded that we have exhausted EHDC’s complaints handling procedure.
The Handling of the Complaint
4. EHDC’s letter of 19 November misunderstood our complaint. We were not complaining that the meetings had taken place but about what appeared to have been discussed at them and the incompatibility of those discussions with Green Belt policy and the adopted local plan. Their letter also seeks to justify the approach by relying on Government Guidance. However, the wrong title was quoted in the letter and EHDC appear to have been using an out of date edition rather than the up to date more comprehensive version.
5. Our letter of 25 November attempted to give EHDC an opportunity to remedy the shortcomings in its first response by explaining again, with a greater number of examples, our reasons for believing that the conduct for which the emails provide only partial evidence, was inappropriate, and drawing attention to the current version of the guidance (copy at Attachment 9).
6. EHDC's response of 26 November again ignored every issue of substance and made the surprising claim that the performance of his duties by a member of staff did not come within the remit of the Council’s Monitoring Officer. Since Section 5 of the Local Government and Housing Act 1989 explicitly includes the actions of officers within the remit of the Monitoring Officer, we are baffled by this assertion, unless EHDC have themselves defined his duties in a way which does not accord with statute.
7. We have found nothing in EHDC's Code of Conduct for Officers which appears to offer any advice as to how officers should conduct themselves, or the limits to their discretion in pre application discussions, and EHDC’s responses have not suggested that their officers are relying on any guidance other than 'Positive Engagement, a Guide for Planning Councillors'. This guidance is supplemented by a Local Government Association publication, 'Probity in Planning'. Section 13.3 has the following to say:
'So that complaints may be fully investigated and as a matter of general good practice, record keeping should be complete and accurate. Omissions and inaccuracies could cause a complaint or undermine the council's case. The guiding rule is that every planning application file should contain an accurate account of events throughout its life.'
8. We trust that in looking at our complaint you will be able to reach your own conclusions about how adequately EHDC has complied with this advice.
9 Dec 09 - Reply from the Local Government Ombudsman
LGO Advice Team
PO Box 4771
|9 December 2009|
Our ref. 9013128
(Please quote our reference when contacting us and, if using email, please put the reference number in the email subject header)
Dear Mr Rhodes
Thank you for your complaint against East Hertfordshire District Council. We have allocated your complaint reference number 09 013 128, and it will help us if you quote this number whenever you contact us.
As I explained when we spoke on the telephone, the law says that, before investigating a complaint, the Ombudsman must normally be satisfied that you have made a written complaint to the Council and that it has been given an opportunity to investigate and to reply. The Ombudsman normally expects that the complaint should be considered through all stages of the Council's complaints process and he has decided that 12 weeks should usually be allowed for this to happen.
From the information I now have, it appears to me that the Council may not yet have had this opportunity. So I am sending a copy of your complaint today to the Council and I am asking the Chief Executive to put it through the Council's own complaints procedure, or to otherwise respond to your complaint.
I enclose a frequently asked questions' (FAQ) sheet which explains in more detail what is likely to happen now that your complaint is being sent to the Council.
We have produced a series of fact sheets to help people understand our role and how we will investigate complaints. I enclose the fact sheets listed at the bottom of this letter that cover some of the issues relevant to your complaint, and may be helpful if the Council does not resolve your complaint.
We will normally allow the Council 12 weeks to fully respond to your complaint: in this case that period ends on 08 February 2010. In calculating the 12 weeks we have allowed for the fact that you originally complained to the Council on 16 November 2009.
If the Council completes its complaints procedure before 08 February 2010 and you are dissatisfied with its response, please telephone us on 0300 061 0614. Tell our Adviser that you have had this letter and quote our reference number 09 013 128. It would help if you have with you the Council's written or email response to your complaint when you call as our Adviser will ask you some questions about what the letter or email says.
If the Council has put your complaint through its complaints procedure then we usually expect you to complete that process before the Ombudsman will investigate the complaint. This is explained in more detail in the enclosed FAQ sheet.
As explained if your complaint has not been resolved, please contact us again once the 12 week period has been completed or the Council has sent you its final response to your complaint.
Yours sincerelyBarbara Bentley
Customer Service Adviser
Enc: P3 Neighbours planning application
G1 Premature FAQs
Originals of above letter from the Local Government OmbudsmanPage 1