Complaint 3

Council’s Response

Local Government Ombudsman’s Response

1 June 2004


1. On 3rd January 2003, Mr Webb visited the Local Planning Authority (LPA) department in Knoll Street, Cleethorpes in order to obtain a form for the modification or discharge of a Section 106 Agreement. After speaking with the receptionist who then consulted with a Planning Officer, Mr Webb was told that the LPA "had no idea" what Mr Webb was talking about and advised him to visit the Law and Democratic Services (LDS) department at the Municipal Offices, Town Hall Street, Grimsby.

1.1 From the LPA department, Mr Webb visited the LDS department and spoke with a receptionist there. Unfortunately, there was nobody available to speak with Mr Webb but he was assured that someone would contact him later that day by telephone.

1.2 Later that day Mr Webb received a telephone call from "K" (Law and Democratic Services Officer) and he also stated that he "had no idea" what Mr Webb was requesting and suggested he went back to the LPA department.

1.3 Having received the reply from the LDS department, Mr Webb, the very same day, sent a letter of complaint to the LPA (Appendix 1). This letter explained Mr Webb's wasted journeys to the LPA and LDS departments and protested that this was not the correct procedure for the application.

1.4 On 31st January 2003, Mr Webb received a letter from the LPA stating that his complaint was going to be dealt with (Appendix 2).

1.5 In response to Mr Webb's letter dated 3rd January 2003, "G" (Head of Development and Environmental Protection), signed by "W" (Senior Planning Officer), stated in his letter dated 7th February 2003 (Appendix 3) that, "The correct procedure for the discharge of a Section 106 Agreement is by writing to the Local Planning Authority requesting such change and setting out the reasons why this should be so. The legislation does not require this to be done on an application form: only in writing."

1.6 In reply to "G"'s letter, Mr Webb sent a further letter dated 12th February 2003 (Appendix 4) to "R" (Director of Environmental Services), Mr Webb again protested against the advice of "G"'s and made it quite clear that this procedure was not correct and provided "R" with a copy of page 336 of Telling & Duxbury's Planning Law and Procedure 12th Edition (Appendix 5).

1.7 A letter of complaint was sent to "R" on 12th March 2003 by Mr Webb (Appendix 6), who disclosed his dissatisfaction of "R"'s response to his letter dated 12th February 2003. Mr Webb also stated that he would appeal to the Secretary of State if a response were not forthcoming to the questions raised in his previous letter.

1.8 Since "R" did not respond to Mr Webb's letter dated 12th March 2003, Mr Webb sent a further letter of complaint to "R" on the 19th March 2003 (Appendix 7). Mr Webb again further disclosed more information about lawful requirements for the Modification and Discharge of Section 106 Agreements etc.

1.9 In response to his letters dated 12th and 19th March 2003, Mr Webb received two letters from "R", signed by "W", dated 21st and 28th March 2003 (Appendix 8) explaining that the Director of Law was going to send a letter to Mr Webb with regards to the discharge of the Section 106 Agreement, within 2 weeks of 21st March 2003.

1.10 As per Section 106B of the Town and Country Planning Act 1990, on 30th March 2003, Mr Webb made an application for Appeal to the Secretary of State for non-determination of his application as he had not received a decision after the statutory 8 week period of consultation and deliberation.

1.11 On 7th April 2003, the LDS department sent a letter to Mr Webb (Appendix 9), along with a letter and copy of the required application form and certificates by which time the Secretary of State had accepted the Appeal for non-determination in their letter dated 7th April 2003 (Appendix 10).

1.12 Just day's prior to the Appeal deadline date, Mr Webb received a letter from "R", signed "W", on 25th July 2003 (Appendix 11). The letter explains that the matter of the Section 106 Agreement is "non-contentious" and asked Mr Webb whether or not he would reconsider submitting a further application etc.

1.13 On a separate matter, a complaint was made by Mr Webb to the Planning Inspectorate and involved Ms Shona McIsaac, Member of Parliament. In conclusion of the complaint, the Planning Inspectorate upheld Mr Webb's complaint. As a result of that complaint, correspondence between Ms McIsaac and "R" occurred. In a letter dated 2nd December 2003, "R", signed by "W", stated that Mr Webb never afforded the Council an opportunity in considering the Section 106 agreement and stated he asked Mr Webb to reconsider the application etc.

1.14 During the Appeal meeting on 24th January 2004, "W" tried to add further conditions to the Section 106 Agreement. She also referred to a site plan of the neighbouring property at Hilltop House and claimed a third party was also involved in the Section 106 Agreement. The Planning Inspector dismissed "W"s claims for additional conditions as with her claim of a third party involvement.

1.15 The Secretary of State's decision was received by Mr Webb on 28th January 2004 and declared the Section 106 Agreement fully discharged (Appendix 12).

1.16 With reference to Sections 1 to 1.3 of this complaint, the LPA and the LDS departments were negligent in the fact that they "had no idea" of what Mr Webb was talking about. Section 106 of The Town and Country Planning Act 1990 provides otherwise, which will be discussed later in this complaint. To excuse them from this fact is contrary to the Council's Constitution that states it is the duty of its Officers to give advice, implement decisions and manage the day-to-day delivery of its services. Some Officers have a specific duty to ensure that the Council acts within the law and uses it resources wisely, therefore it is evident that "K" has not upheld the Council's Constitution in this matter alone. Under Section 8 of the Council's Development Control Charter it states, "A planning duty officer is available during office hours to give information and advice. Where necessary this will include forwarding matters on to other Departments." Quite clearly Mr Webb requests were not forwarded to the LDS department, instead the LPA instructed him to make his own enquiries instead. Theirs actions both caused maladministration and injustice.

1.17 In a complaint dated 3rd January 2003, Mr Webb explained to "R" (Director of Environmental Services) his wasted time and journeys in order to ascertain the correct forms, where he was told by a Planning Officer on his second visit that day to the LPA department, to put his request for the Discharge of the Section 106 Agreement in writing. He also stated that such an application must be made on a form provided by the LPA, as stipulated by Section 106 of The Town and Country Planning Act 1990.

1.18 On the 7th February 2003, "G" had written to Mr Webb in reply to his letter dated 3rd January 2003. He stated that the correct procedure for the Modification or discharge of a Section 106 Agreement is by writing to the LPA requesting such a change and setting the reasons why this should be so. The legislation does not require this to be done on an application form but only in writing.

1.19 A Section 106 Agreement is a lawful deed comprising planning obligations. These obligations can be modified or discharged by agreement between the LPA and the person or persons against whom the obligation is enforceable (Section 106A (1) of The Town and Country Planning Act 1990). Such agreement has to be by deed (Section 106A (2)). Planning obligations bind the land of the person creating the obligation and can make provision for the landowner's liability to cease when his or her interest in the land ceases. The procedure for modification or discharge of a Section 106 Agreement can only be used after 5 years have elapsed from the making of the planning obligation and involves applying to the LPA for the modification or discharge sought. There also exists a right of appeal to the Secretary of State against the LPA's decision.

1.20 Section 106A (3) of The Town and Country Planning Act 1990 provides that a person against whom a planning obligation is enforceable may, at anytime after the expiry of the relevant period, apply to the LPA by whom the obligation is enforceable for the obligation to have effect subject to such modification as maybe specified in the application; or to be discharged.

1.21 The procedure for applying for a modification or discharge of a planning obligation is laid down in the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992. The application must be made on a form provided by the LPA (Regulation 3). The applicant must also notify any other person against whom the planning obligation is enforceable. The LPA must publicize the application and invite representations. These publicity requirements are greater than those, which apply on the initial creation of the planning obligation. The LPA must give notice of its decision within 8 weeks, or such longer period maybe agreed with the applicant (Section 106A (7): Regulation 6 (2)).

1.22 In considering the application, the LPA must decide whether the planning obligation continues to "serve a useful purpose". If it does not, the authority must discharge the obligation. If it does, the LPA must consider whether that purpose would be served equally well by any suggested modification. If a suggested modification would serve this purpose, the LPA should modify the planning obligation accordingly. If it would not, the LPA should decline to modify the planning obligation. The LPA must confine its attention to such modifications as are sought in the application. It cannot impose a modification of its own devising. Where the LPA determines that the planning obligations should not be modified, it must state the reasons for its decision (Regulation 6(3)). Where the LPA decides to modify the planning obligation, the modified planning obligation is enforceable as of the date of the authority's decision (Section 106A (8)).

1.23 A right of Appeal to the Secretary of State exists if the LPA either fails to determine the application within the 8-week period (or such extended period as the parties agree) or determines that the planning obligation should continue to have effect without modification (Section 106B (1)). Where an appeal is made because the LPA has failed to make a decision within the requisite time, the application is treated as if it had determined that the planning obligation should continue to have effect unmodified (Section 106B (2)).

1.24 The Secretary of State's powers on an Appeal are the same as the LPA's powers when considering an application. Thus he or she must consider whether the planning obligation continues to serve a useful purpose and if not, must discharge it. If he or she decides that it does continue to serve a useful purpose he must consider whether any modifications suggested in the original application would serve that purpose equally well. If he or she decides, the Planning Inspector must modify the planning obligation accordingly.

1.25 Having due regard for Regulation 3 of the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 (Appendix 13), "G"'s assertion that there is no legislation requiring the application to made on an application form supplied by the LPA are entirely wrong and unlawful. The correct procedure is outlined in the Section 1.21 of this complaint. In no way does Section 106A of The Town and Country Planning Act 1990 state that by writing to the LPA constitutes the correct procedure.

1.26 In his letter dated 12th February 2003 to "R", Mr Webb asserts his belief that "G" actions were wrong and states advice given in Telling and Duxbury's Planning Law and Procedure 12th Edition and supplies him with the relevant page of that book. Mr Webb sent further letters to "R" as he failed to respond to Mr Webb's letter dated 12th February 2003, contrary to the Council's Development Control Charter, Section 5 that states, "If advice is sought by letter a response will be made within 10 working days." This is maladministration.

1.27 On the 7th April 2003, Mr Webb received the correct application forms and certificates as required by Regulation 3 of the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, from the LDS department. This further vindicates Mr Webb's assertion of this lawful requirement and "G"'s and "R"'s total lack of cooperation and vindictiveness towards Mr Webb as outlined in Section 1.26 of this complaint in their breach of national policy and guidance.

1.28 In a letter dated 25th July 2003 from "R", signed by "W", he states that in view of the timescales involved and because of the non-contentionous nature of the application he suggested that I re-submit the application again. He also stated that the application would be "looked upon favourably" and "would likely be dealt within an 8 week period" and enclosed the relevant forms and certificates. Mr Webb's application was made on 3rd January 2003, even though he protested that this was not the correct procedure. In his letter dated 7th February 2003, "G" confirmed the acceptance of Mr Webb's application by declaring, "As your formal request for the discharge of the Section 106 Agreement has been made in writing the Council can began to process it", therefore under Section 106A of The Town and Country Planning Act 1990 the LPA have deemed to have accepted Mr Webb's application. The Secretary of State had also deemed such an application valid in the acceptance of the Appeal. So there would be no reason why Mr Webb should submit a second application.

1.29 If "R" and "G" truly believed that such an application was "non-contentious", then, as per Section 106A (1), a new deed could have been prepared and signed to the discharge of the planning obligations at anytime between January 3rd 2003 and 25th July 2003. This was not forthcoming. It is Mr Webb's belief that this was nothing more than ploy by them to thwart Mr Webb in his attempt to discharge the agreement, which will be vindicated later in this complaint. If the issue was, in "R"'s words, "non-contentious", why should the LPA need "a chance to make a decision", as outlined in his letter?

1.30 "R" also stated, "I feel it would be in no-one's interest to prolong this matter any more than need be bearing in mind appeals are costly and time consuming to all parties." It was "R" and "G" who had prolonged the matter of the application. As stated in earlier in this complaint, "G" made it quite clear in his letter that North East Lincolnshire Council was processing the application. So it is was "R" and "G" who prolonged the matter and not Mr Webb. It was "R" and "G" who chose to take this route, Mr Webb simply exercised his right to Appeal as prescribed by Section 106B of The Town and Country Planning Act 1990.

1.31 "R" has the audacity of talking about the time and cost of Appeals. It is quite evident that his letter was sent 7 days prior to the 6-week deadline (5th August 2003) set by the Secretary of State for the submission of the Appeal hearing statements, by which time Mr Webb had gone to considerable expense and time preparing his hearing statement and evidence. Mr Webb's hearing statement was completed and sent to the Planning Inspectorate on 24th July 2003. "R" had a unique opportunity in presenting his letter dated 25th July 2003 at the commencement of the Appeal - as far back as 7th April 2003 but chose to leave the matter until the 'eleventh hour'. This is maladministration and injustice.

1.32 In her Appeal hearing statement (Appendix 14), Section 4.4 of that statement, "W" claimed that the Council "were unaware of a form and checks made on our behalf did not reveal the presence of a form" despite Mr Webb's protest. Mr Webb identified and provided the correct legislation identifying the correct procedures etc. Therefore "W"'s comments are absolute nonsense contrary to the Council's legitimate interest and planning legislation. In Section 4.9 of her statement, she claimed the Council "did not process the request (Mr Webb's application dated 3rd January 2003) believing the Appellant wished to deal with the discharge of the Agreement by way of formal application. Having supplied the form and certificates as requested, the Council could not have expected the Appellant to have appealed on the grounds of non-determination." It is quite evident within the history of this complaint, that there is no indication whatsoever to Mr Webb from the Council that they had stopped processing his application until he received "R"'s letter dated 25th July 2003, during the latter part of Appeal hearing statement process. Again, her comments are absolute nonsense contrary to the Council's legitimate interest. In her conclusion of that section, "W" states, "The application made by the Appellant did not include the submission of a certificate. His letters to the Council clearly show that he was familiar with the regulations. It would be inappropriate to deal with the application without a certificate of ownership being signed and the appropriate notices being served, as this could prejudice the rights of third parties to make comment on the application." Here, she has the audacity to start quoting planning law that weeks earlier did not exist and blame Mr Webb in the application by not complying with planning legislation. It is Planning Officers of the Council who gives advice, upholds and enforces planning legislation and to lay the blame with Mr Webb, as a client of the Council, for their willful and deliberate neglect of law is both malicious and wholly indefensible.

1.33 During the hearing meeting on 21st January 2004, "W" represented the LPA. It was during this meeting "W" tried to introduce further evidence by claiming a third party was also encumbered by the Section 106 Agreement. She then produced a plan of Hilltop House. Mr Webb assumed from the plan she meant the occupiers of Hilltop House were the third party. It was when Mr Webb challenged "W" on her claims and referred to the Section 106 Agreement that indicated that no other parties except him and the Council were party to the deed, she withdrew her claim. "W" did not offer this as part of her evidence in her Appeal hearing statement. During the latter part of the Appeal hearing, "W" stated to the meeting that the LPA wished to add further conditions to the Section 106 Agreement. The Planning Inspector questioned her as to the reasons why such conditions would be relevant. The Planning Inspector rejected her requests, as he believed the revised North East Lincolnshire Local Plan was sufficient to overcome any planning problems if they ever arose - as she originally claimed in her Appeal hearing statement. "W" did not make any suggestion of further conditions in her Appeal hearing statement.

1.34 With particular relevance to Sections 1.27, 1.28, 1.29 and 1.32 of this complaint, Mr Webb further substantiates his complaint against "R", "G" and "W". In his letter dated 25th July 2003, "R" claimed that the Section 106 Agreement matter was "non-contentious" and that the application, "would be looked upon favourably". It was quite evident that during the Appeal hearing, it was "W"'s intention to add further conditions to the agreement, contrary to "R"'s comments of been "non-contentious". Evidently, as of a consequence, the application was indeed contentious and therefore "R"'s claims of "non-contentious" were lies, which were an attempt to frustrate Mr Webb, causing him further loss of time and expense. Therefore, Mr Webb was justified in his action to continue with his right to Appeal. "R", "G" and "W" had jointly conspired to pervert the outcome of Mr Webb's application for the discharge of the Section 106 Agreement and therefore abused their powers and caused maladministration.

1.35 With particular relevance to Sections 1.28 to 1.34 of this complaint, on 2nd December 2003, "R", signed by "W", had replied to the Member of Parliament in response to that Member of Parliaments investigation of Mr Webb's complaint to The Planning Inspectorate. "R" stated to Ms McIsaac, "The Council were never given the opportunity to consider the merits or otherwise of the case". The Council were given every opportunity in considering the application as explained in the latter Sections but chose not to. He continued by stating, "Following the submission of the appeal the Council wrote to Mr Webb advising that if he re-applied to have the Agreement discharged then it was likely that the application would be looked upon favourably." As discussed in the latter Sections, it was not their intention to discharge the agreement but add more conditions to it. To portray Mr Webb as been totally uncooperative and disclose misleading comments in the eyes of the Member of Parliament, is again both malicious and wholly indefensible.

1.36 "G" and "W" are responsible for the preparation of written reports and for advising Members at Committee meetings will be qualified to an appropriate level in Town Planning. Whether or not they are Members of the Royal Town Planning Institute (R.T.P.I) they will be required to undertake continued professional development to a level required by the R.T.P.I. Both "W"'s and "G"'s perverse dealings in these matters, have also brought the Council into disrepute with The Royal Town Planning Institute Code of Professional Conduct as described in the Council's document "Probity in Planning". Within this document, The Chartered Object of the Royal Town Planning Institute purpose is to advance the science and art of town planning for the benefit of the public. It is the purpose of this Code, that is embraced by the Council, set out in the document, to ensure that in all their professional activities members of the Royal Town Planning Institute:

1.37 As per North East Lincolnshire Council's Constitution, "R", "W" and "G" have brought the Council into disrepute in this matter. The Officer's Code of Conduct states that they must act in a manner which is not contrary to the Council's legitimate interest, in particular to report or record any matter in respect of which there is a duty to report or record, with particular relevance to the Section 1.25 of this complaint, where they had an obligation to uphold Regulation 3 of Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, Section 106A of The Town and Country Planning Act 1990 as amended by Section 12 of The Planning and Compensation Act 1991 This alone constitutes Gross Misconduct in the fact that they had negligently and willfully failed to comply with the legal requirements of the Council and national legislation.

1.38 It now appears that such violation of planning legislation by these Officers of the LPA, as the Council, has existed since the implementation date of the regulations - some 13 years ago. It is also safe to believe that within this period of time that any cases for the modification or discharge of planning obligations brought before North East Lincolnshire Council by other applicants have been incorrectly dispensed and as of a consequence may have prejudiced the rights of those applicants to a fair hearing.

1.39 As a result, "R", "G" and "W" in this particular matter have not afforded Mr Webb the fairness and consistency in the treatment as an individual and were unjustified in their handling of the application an in particular their perverse comments to Mr Webb and acted in a manner which was contrary to the Council's legitimate interest, as per the Council's Constitution. They have not assisted in the effective operation of the Council and inappropriately used Council resources in what can only be described as a personal vendetta against Mr Webb. They were also negligent in carrying out duties in accordance with other relevant procedures and policies and displayed personal conducts of unacceptable standards.

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Investigating Officer's Findings and Conclusion

Complaint section Findings Action/Outcome
Section 1.17
"G" and "W"'s delay of information requests contrary to the Council's Development Control Charter and Part 5 of the Council’s Constitution.		 Not investigated.
Section 1.18
"G" and "W"'s total disregard for and breaches of Section 106 of the Town and Country Planning Act 1990, as amended and the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, contrary to Part 5 of the Council’s Constitution.		 “It is clear that Mr Webb was badly advised on something which could have easily been checked and this is an example where referral to Legal Services at an earlier point in the process would have been appropriate, especially where Mr Webb had set out in his complaint the he felt the answer he had been given originally was wrong. It should be noted, however, in this case though, that Mr Webb in his letter of 03/01/03 states that he too was advised by the Legal Department that they had no knowledge of such a form. I would expect that where a fundamental point was being questioned so clearly, that it would trigger in any Planning Officer the need to check the matter either themselves or by taking further advice.” No action.
Section 1.26
"R"'s disregard for information requests contrary to the Council's Development Control Charter and Part 5 of the Council’s Constitution.		 Not investigated.
Section 1.28
"R" and "W"'s treatment of the application and the Council's Appeal Statement contrary to Section 106 of the Town and Country Planning Act 1990, as amended and Part 5 of the Council’s Constitution.		 “Clearly, there is a difference of opinion here in the Council having to sought resolve the matter, by albeit late in the day requesting an application, rather than simply allowing the appeal which had already been submitted to continue.” No action.
Section 1.35
"R" and "W"'s factual inaccuracies regarding not giving the Council an opportunity to deal with the application, contrary to Part 5 of the Council’s Constitution.		 “It is understandable that Mr Webb would feel aggrieved by some of the statements made in the appeal statement which appear to attempt to place the blame for the original mistake on Mr Webb.” No action.
Investigating Officer's Conclusion “Mr Webb's complaint that he was badly advised initially and that this led to delays in dealing with his application and that the Council did not deliver services in line with promised timescales is upheld. I do not consider that Mr Webb's complaint that the matter was further delayed at the appeal stage should be upheld as the Council did offer to resolve the matter without recourse to continuing the appeal.” No action.

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Local Government Ombudsman's Findings and Conclusion

Complaint section Findings Action/Outcome
Section 1.17
"G" and "W"'s delay of information requests contrary to the Council's Development Control Charter and Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.18
"G" and "W"'s total disregard for and breaches of Section 106 of the Town and Country Planning Act 1990, as amended and the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, contrary to Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.26
"R"'s disregard for information requests contrary to the Council's Development Control Charter and Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.28
"R" and "W"'s treatment of the application and the Council's Appeal Statement contrary to Section 106 of the Town and Country Planning Act 1990, as amended and Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.35
"R" and "W"'s factual inaccuracies regarding not giving the Council an opportunity to deal with the application, contrary to Part 5 of the Council’s Constitution.		 Refused to investigate.
Local Government Ombudsman's Conclusion “You complain about delay caused by wrong advice by the Council in the way the request should be made. However, you appealed against the non-determination of the application to a Planning Inspector and the Local Government Ombudsman is unable to investigate for the reasons given above.” No action.

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