Complaint 5

1 June 2004

1. In November 2003, Mr Webb visited the Local Planning Authority department in Knoll Street, Cleethorpes to view plans of a planning application for Hilltop House, Walk Lane, Irby upon Humber. Whilst he was there, he also studied the original approved plans for Hilltop House - Planning Application (DC/1007/00/WOL).

1.1 It was whilst looking through this particular planning file, that Mr Webb discovered an two email message's, dated 14th March 2001, between "W" (Senior Planning Officer) and "D" (Archaeologist) (Appendix 1).

1.2 The first message was from "W" who simply asked "D" for confirmation in relation to the discharge of archeological conditions of Planning Application (DC/1007/00/WOL). In his reply, "D" confirmed that such conditions would only be fully discharged when he received a report.

1.3 The latter part of his message to "W" states, "On a separate matter could you check that a similar condition has been placed on Mr Webb's barn. I understand he may kick up a fuss having to pay for someone to attend."

1.4 On 2nd February 2002, Mr Webb requested, to "D", a copy of all correspondence leading to his email and any other consequential replies. Mr Webb also stated he found "D"'s comments most inflammatory and libelous in the nature of which they were found in the public domain (Appendix 2).

1.5 On 9th February 2004, "D" replied to Mr Webb's letter and reported his version of events etc., leading to his email message etc (Appendix 3).

1.6 In his email message, "D" confirmed that he visited the site of Planning Application (DC/1007/00/WOL) on 13th March 2001 to carry out a monitoring visit. It is Mr Webb's contention that whilst he was carrying out his monitoring visit at the site of Planning Application (DC/1007/00/WOL), "D" noticed the preliminary works of construction of Mr Webb's garden store that he believed was works on 'The Barns' property, hence his comments referring to 'Mr Webb's barn' in his email message. This garden store received planning permission on 2nd November 2000 under Planning Application (DC/780/00/WOL).

1.7 The stable (Planning Application (DC/675/98/WOL) to which he refers to in his letter has never been implemented. As stated in his letter, "D" admits he had no access to the Council's computer system or Planning Register as he was based at a different location. Therefore, he could not of known about the stable and the garden store application, hence his requests to "W" to check and report back a similar condition has been placed upon Mr Webb's property - 'The Barns'.

1.8 According to the LPA, the stable application could not be built, as it was their assertion that the planning permission was incapable of implementation. In a letter dated 25th January 2002 (Appendix 4), from "W" (Senior Planning Officer) to Mr Webb's planning agent made it quite clear that, "The house approved under application no. 08/93/0529 was never built. The house actually built on this site was approved on 12th May 2001 under application no. DC/1007/00/WOL. The approval for the stables contained 2 conditions that related to the application for the house that was not built - conditions 5 and 6. Whilst it might be possible to vary condition 5 it is not possible to comply with condition 6 because that tied the stable to the building of the house on the earlier approval and as that house was never built it is not possible to comply with the condition."

1.9 It appears that "D"'s version of events in his letter are not the true account of events leading to his comments within his email message. Quite clearly, he was talking about Mr Webb's garden store and not the stables. If such a planning condition, to which he refers, existed in the garden store application, which it does not, then Mr Webb was binded by that condition. Mr Webb's only alternative to removing that condition was to apply for an amendment for the removal of that condition in the original planning application.

1.10 It was in this email message that "D", in his own words, "I understand he may kick up a fuss about having to pay for someone to attend." If he "understands" that Mr Webb "may kick up a fuss" then he has information from a third party to lead him to that conclusion. It is this information Mr Webb tried to ascertain from him. These comments are not relevant to the information requested by "W". Such information is regarded by Mr Webb as inflammatory and derogatory and should have remained confidential to "D" only. His email is not an extension of speech but a libelous comment.

1.11 In his letter to Mr Webb, "D" claims that there was no additional correspondence in any form relating to his request for information from "W". Mr Webb is not concerned with "D"'s correspondence relating to the information he requested from "W" but the information ascertained prior to those requests.

1.12 Under Part 5 - Officers Code of Conduct of the Council's Constitution, "D" has a duty to promote fairness and consistency in the treatment of individuals and assist in the effective operation of North East Lincolnshire Council. He also must maintain the Council's records or documents and not disclosed confidential information to any unauthorized person - namely the public, as in the context of which the email message was found. Confidential information obtained in the course of work must not be divulged to any person (inside or outside the Council's employment) who is not authorized to receive it. Therefore, it is evident that "D" has caused maladministration constituting gross misconduct as per the Council's Constitution.

1.13 In his letter to Mr Webb, "D" also stated, "that following consultation with "G" as Head of Development and Environmental Protection and "P" the Development Control Manager the section of the email referring to you has been deleted from the file copy. This will ensure these remarks are not available for anyone else to see. In addition, I would confirm that no electronic version of this email has been retained."

1.14 Again, as per the Officers Code of Conduct of the Council's Constitution, "D", "G" and "P" have a duty to accurately maintain the Council's records or documents. "D" does not indicate who gave authority to, firstly, alter the email message contained within the Planning Register and secondly, destroy the electronic version of that message.

1.15 Alteration, mutilation or destruction of any record or document unless properly authorized to do so or falsification of any record or document will be regarded as a breach of this rule. It is quite apparent that all three officers have breached this rule due to their knowledge of the alterations and destruction of those documents. This is maladministration constituting gross misconduct as per the Council's Constitution.

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Investigating Officer's Findings and Conclusion

Complaint section	Findings	Action/Outcome
Sections 1.3 and 1.12 "D"'s reporting and dissemination of offensive and damaging information which had no province within the planning register, contrary to Part 5 of the Council's Constitution.	“The issue of the comment made by "D" in the E-mail is quite valid in that such a comment should not have appeared on a public file.”	“It would be advisable for protocols to be issued advising Officers that E-mails and responses which are to be used as formal confirmation of matters and therefore would appear in the public realm, should be treated as a formal document and written as such. It would also be advisable to have a check mechanism whereby E-mails put on files are checked, so they do not contain matters which are irrelevant to the case involved or may, for whatever reason, cause concern or be misinterpreted." No response.
Section 1.17 "D" states that he did not have access to the planning register and therefore was not aware of the exact development taken place without establishing the facts first, contrary to Part 5 of the Council's Constitution.	Not investigated.
Sections 1.13, 1.14 and 1.15 "G" and "P"'s consent to the destruction of the damaging information on that particular email, contrary to Part 5 of the Council's Constitution.	Not investigated.
Investigating Officer's Conclusion	“This complaint is upheld.”	“See recommendations re E-mails." No response.

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Local Government Ombudsman's Findings and Conclusion

Complaint section	Findings	Action/Outcome
Sections 1.3 and 1.12 "D"'s reporting and dissemination of offensive and damaging information which had no province within the planning register, contrary to Part 5 of the Council's Constitution.	Refused to investigate.
Section 1.17 "D" states that he did not have access to the planning register and therefore was not aware of the exact development taken place without establishing the facts first, contrary to Part 5 of the Council's Constitution.	Refused to investigate.
Sections 1.13, 1.14 and 1.15 "G" and "P"'s consent to the destruction of the damaging information on that particular email, contrary to Part 5 of the Council's Constitution.	Refused to investigate.
Local Government Ombudsman's Conclusion	“I note that the Council has apologized for this and agreed to remove e mails. In my view there is no more the Local Government Ombudsman would expect the Council to do in response to your complaint and, therefore, I see no grounds to pursue this complaint further.”	No action.

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