Complaint 6

Council’s Response

Local Government Ombudsman’s Response

1 June 2004


1. On the 12th February 2001, Mr Webb complained of a breach of Planning control relating to hedgerows belonging to Property 'A' and Property 'B' in Walk Lane, Irby upon Humber to "M" (Enforcement Officer) in person at the LPA's department in Knoll Street, Cleethorpes.

1.1 Conditions of within the planning permissions (Appendix 1) of both Property 'A' and Property 'B' state;

Any gates or gate positions to the vehicular access shall be set back a minimum distance of 3.0 metres from the nearside carriageway edge of Walk Lane.

Reason: To provide for the safety and convenience of users of the highway and for the free flow of traffic.

Nothing shall at any time be planted, erected, retained or allowed to grow over 1.05 metres in height above the level of the adjoining carriageway, within 3 metres of the nearside carriageway edge of Walk Lane, along the whole of the eastern (western) site frontage.

Reason: To provide for the safety and convenience of users of the highway and for the free flow of traffic.

1.2 It was whilst Mr Webb was visiting the LPA's department on a different matter on 21st July 2003, he discovered an LPA enforcement document numbered ENF/104/01/WP (Appendix 2) relating planning control breach reported by Mr Webb in February 2001 in a planning file that had no relevance to Mr Webb's complaint. This particular document was found in the Planning Register, in a file pertaining to Property 'C', Walk Lane, Irby upon Humber.

1.3 On 24th July 2003, a complaint was made to then Chief Executive, James Leivers with regards to several matters including the enforcement decision made by the LPA in March 2001 (Appendix 3). Mr Webb requested a copy of that decision under The Data Protection Act 1998.

1.4 In reply to Mr Webb's complaint, "G" (Head of Development and Environmental Protection) sent a letter to Mr Webb, dated 14th August 2003 ( Appendix 4).

1.5 In response to "G"'s letter dated 14th August 2003, Mr Webb explained his beliefs of the shortcomings and irregularities of "M"'s enforcement report, in his letter dated 16th October 2003 (Appendix 5).

1.6 On 30th October 2003, "G" replied to Mr Webb's letter and proposed a meeting with Councillor "V" (Chairman of the Planning Committee) to discuss Mr Webb's concerns (Appendix 6).

1.7 Mr Webb subsequently accepted "G"'s meeting, amongst other matters raised, with Councillor "V" and also requested that Councillor "B" and Councillor "Q" also attended the meeting, in his letter dated 5th November 2003 (Appendix 7).

1.8 In response to Mr Webb's letter, amongst other matters raised, "G" stated that the meeting offered by him would no longer be beneficial and inappropriate to meet with the other two Council Members in his letter dated 19th November 2003 (Appendix 8). He also indicated that the complaint of the hedgerows in Walk Lane would be fully investigated and reported to the Planning Committee on 10th January 2004.

1.9 Having read the contents of "G"'s latest letter, Mr Webb sent a response to that letter to Councillor "V", Councillor "X" (Vice Chairman of the Planning Committee) and James Leivers in a letter dated 27th November 2003 (Appendix 9).

1.10 On 29th January 2004, after the report to the Planning Committee, Mr Webb sent a letter to "G" asking him for a response to his complaint. "G" replied on 30th January 2004, stating that there was no breach of Planning control with regards to the hedgerows in Walk Lane (Appendix 10).

1.11 In response to "G"'s letter, Mr Webb made a request under The Data Protection Act 1998 for a copy of the documents pertaining to, amongst other matters, the report and background papers of his decision pertaining to the hedgerows in Walk Lane in a letter dated 6th February 2004 (Appendix 11).

1.12 In another letter dated 6th February 2004, a complaint was sent to James Leivers regarding "G"'s investigation into the complaint (Appendix 12).

1.13 On 9th February 2004, Mr Webb visited the Civic Offices in Knoll Street, Cleethorpes in order to request a meeting with a Highways Officer to discuss the nature of his complaint with regards to the hedgerows in Walk Lane.

1.14 Mr Webb received a letter from "S" (Senior Enforcement Officer) on 10th February 2004 explaining that Mr Webb knew of the outcome of the investigation of Property 'A''s hedgerow and would be informed in due course of the hedgerow at Property 'B' in due course (Appendix 13).

1.15 Having due regard to the planning conditions in Section 1.2 of this complaint, Mr Webb felt it necessary to complain, due to the possible danger of highway users due to the obstruction of view on two particular bends in Walk Lane and visited the LPA's department and spoke with "M" (Section 1 of this complaint) on 12th February 2001.

1.16 "M" noted down on an Enforcement Complaint form (Appendix 14) the nature of Mr Webb's complaint. In the complaint address he noted addresses of Plots 1 and 2, Walk Lane, Irby. In the nature of complaint section of the form he stated, "Boundary hedge of plots 1 & 2 Walk Lane Irby overgrown - Poss Breach of condition (dangerous no visibility at junction due to height of hedge)." The name and address of the complainant section of the form contained Mr Webb's name, village name and telephone number. Mr Webb was not informed of "M" outcome of his investigation into this complaint.

1.17 It was not until July 2003, during a visit to the LPA's department on a different planning matter, that Mr Webb found the original complaint document and its outcome in the Planning Register. Mr Webb was shocked as these documents were contained within the planning application file of Planning Application (08/95/428/WOL) - Property 'C'. Mr Webb did not complain of the hedgerow at Property 'C' but those of Property 'A' and Property 'B'.

1.18 On discovery of these documents, Mr Webb asked for a copy of them from the office clerk present at reception. This lady stated she would have to consult an Officer to ascertain permission. It was during this conversation, that the office clerk began to address the reply to Mr Webb's questions from around an office door. The Officer in this 'conversation' was "S" (Senior Enforcement Officer). In summation of this 'conversation' from around the door through the office clerk, "S" made it quite clear that if Mr Webb wanted a copy of these documents then he should consult a solicitor. Mr Webb stated he was entitled to such documents under The Data Protection Act 1998 and would request them under these provisions.

1.19 A complaint was sent to James Leivers on 24th July 2003, relating to the 2001 enforcement complaint on what had transgressed 3 days earlier at the LPA's department with "S". Under The Data Protection Act 1998, Mr Webb also requested a copy of the documents he found in the Planning Register.

1.20 "G" responded to Mr Webb's complaint and also enclosed the enforcement report, as requested by Mr Webb. In response to that letter, Mr Webb addressed the matters raised within it. Firstly, he pointed out the nature of the planning conditions (as described in Section 1.2 of this complaint). It is quite clear that the one of those conditions stated a maximum height of 1.05 metres above the level of Walk Lane and not 1.5 metres. "M" also failed to notice the minimum distances of the hedges, fences and gate positions were to be 3 metres minimum from the nearside carriageway edge of Walk Lane. Mr Webb made it explicitly clear to "M" that the complaint was primarily aimed at the hedgerows adjacent to the bends in Walk Lane - an interference with sight lines, causing a danger to highway users. It should be noted here that prior to the approval of the planning permissions, the sites of all the future properties contained no hedgerows at the specific points of these corners in Walk Lane.

1.21 Mr Webb did not make a complaint against the property in which the decision documents were found, as the hedgerow pertaining to Property 'C' does not impede highway users in any way whatsoever. Mr Webb stated that he found it upsetting to find such documents in the planning file of Property 'C', as Mr Webb was a friend of that property owner and caused him much embarrassment and upset to his friend. At the time of "M"'s site visit, the hedgerow pertaining to Property 'C' was only 30 centimetres but this was irrelevant, as Mr Webb had not complained against this particular hedgerow.

1.22 It is quite evident that there was a breach of planning conditions. It is also apparent that "M" inspected the hedge of Property 'B'. There, at this particular bend in Walk Lane it could have been calculated that the level of the ground where the hedge is situated is 60 centimetres above the level of Walk Lane. This added with the height of the hedge at that time, as measured by "M", were 1.53 metres in height. This figure added with the differentiated level of 60 centimetres totals 2.13 metres, over twice the height specified by Planning Condition. It is also apparent that "M" did not carry out his duty in considering Mr Webb's complaint of Property 'A's hedgerow, just several metres away opposite Property 'B'.

1.23 Government Circular 11/95 states that the Secretary of State takes the view, in addition to satisfying the court's criteria for validity that conditions should not be imposed unless they are both necessary and effective and do not place unjustifiable burdens on the applicants. As a matter of policy, conditions should only be imposed where they satisfy tests of;

"M" and "G" therefore had a duty to consider the conditions in the context they were created. Those conditions precisely state the heights and distances required of those hedgerows. Quite clearly this shows that any breach of conditions must be remedied through enforcement to retain them at the correct height or distances as stipulated by those conditions or require an amendment to the original planning application, to amend those conditions to include the new height and distances.

1.24 "G" claimed "M" tried to call Mr Webb by telephone to inform him of his decision but was unable to do so. He also claimed he was unable to write to Mr Webb as he was not in receipt of his address. This is utter nonsense. Both "G" and "M" are fully aware of Mr Webb's address in Irby upon Humber. Firstly, "M" had visited Mr Webb's home on an enforcement matter that was consequently dismissed and had also written to Mr Webb in connection with that matter. Secondly, "G", who was the delegating officer in this decision of the hedgerows in Walk Lane, knew also of Mr Webb's address because of numerous letters between him and Mr Webb in other matters in the preceding years. Both of these Officers also had access to the Electoral Role register.

1.25 The planning conditions contained within those planning permissions were created, pursuant to Section 130 of the Highways Act 1980 - Protection of Public Rights, "to provide for the safety and convenience of users of the highway and for the free flow of traffic". This would have been a requirement of the Council's Head of Engineering (Highways Authority), who also confers the power of delegation to exercise the regulatory function of the Planning Committee under Chapter 66 of the Highways Act 1980 and New Roads and Street Works Act 1991 (Council's Constitution Part 3, Section 5). The Highways Authority has a responsibility to keep public highways open and remove obstructions and encroachments, which may affect the use and safety of the highway. Section 79, Chapter 66 of the Highways Act 1980 gives Highways Authority powers;

(1) Where, in the case of a highway maintainable at the public expense, the Highways Authority for the highway deem it necessary for the prevention of danger arising from obstruction to the view of persons using the highway to impose restrictions with respect to any land at or near any corner or bend in the highway or any junction of the highway with a road to which the public has access, the authority may, subject to the provisions of this section, serve notice, together with a plan showing the land to which the notice relates, -

Third party claims against the Council, as the Highways Authority, can be for either personal injury accidents or damage to personal property such as cars, clothing or premises, caused by alleged defects in the publicly maintainable highway or a nuisance caused or permitted by the Council. Section 130(3), Chapter 66 of the Highways Act 1980 places a duty on the Council, as the Highways Authority, to prevent, as far as possible, the stopping up or obstruction of the highways for which they are the Highways Authority. Therefore, it is the ultimate duty of the Council, as the Planning Committee, to assert and protect those rights of the public to use and enjoy highways, on the material consideration and determination of advice given by the Head of Engineering (Council's Constitution Part 3, Section 3), pursuant to Section 172 of The Town and Country Planning Act 1990, which states;

(1) Where -

1.26 Class A of Part 2 of the General Permitted Development Order (GDPO) 1995 states;

A1) Development not permitted by Class A if -

Again, further legislation in the form of the General Permitted Development Order 1995, Class A Part 2 removes the permitted development right of (works carried out without need for planning permission) and forbids the erection or enclosure adjacent of any height more than one metre above the ground. This is to prevent an obstruction to the view of persons using that highway by vehicular traffic at or near a bend or corner so as likely to cause danger to such persons.

1.27 The Council's own document 'The Planning Enforcement System' (Appendix 15) describes how exactly and correctly an Enforcement Officer executes his or her duty with regards to a breach of planning control. Firstly, once a complaint is logged, an Enforcement Officer will investigate the history of the site concerned and carry out a site visit. Once the initial investigation has been carried out, he or she must consider a number of matters before they are in a position to recommend a course of action. It maybe necessary for him or her to carry out further inspections accompanied by other specialized officers, e.g. Building Inspector or Environmental Health Officer, in order to confirm the exact nature of the breach and whether other breaches of other legislation is involved.

1.28 In the above Sections, it is evident that these breaches of planning control are in fact breaches of Section 79, Chapter 66 of the Highways Act 1980, within the conception of those planning conditions. It is quite plain to see that Mr Webb's complaint were of road safety, as "M" noted on his initial report form, "(dangerous no visibility at junction due to height of hedge)." His next task was to collate information of those Planning Conditions from the Planning Register and ascertain their reasons for those conditions, as described in the latter Section of this complaint. Due to the nature of those planning conditions, his next action would be to ascertain the services of the Head of Engineering, or one of his Officers, as to their professional opinion of the breach of planning control. Having consulted the Head of Engineering, he could then prepare his report on any issues raised by the Head of Engineering. This report must then be passed to the Planning Committee for their determination, as per Section 130(3) of the Highways Act 1980 (Council's Constitution Part 3, Section 3).

1.29 There is no suggestion within "M"'s report that the Head of Engineering or one of his Officers was ever consulted in this matter, despite been a matter of the Council's Highways Authority. Quite clearly there is a breach causing harm, contrary to his report findings and it was his duty in the public's interest, to take action against that breach. Conversely, if such conditions were not apparent in those planning permissions, highway users were still afforded the right of protection from danger within Class A Part 2 of the GDPO 1995. This is maladministration and abuse of power.

1.30 It is also evident that the "G", as Head of Development and Environmental Protection, delegated the decision of the complaint as he signs the report. He does not confer the power to deal with this complaint, the complaint was one of deemed to be of road safety as already discussed earlier and make decisions on behalf of the Council in matters concerning the Highways Act 1980. The Council's Constitution quite clearly defines his delegated powers. Any matters arising out of and relevant to the Highways Act 1980 are clearly defined within the Council's Constitution to be matters for the Head of Engineering and the Planning Committee - not "G". This is an abuse of power and gross maladministration.

1.31 "G", as Head of Development and Environmental Protection, has left North East Lincolnshire Council in a precarious predicament, as it is now responsible for any personal injury, accidents or damage to personal property such as cars, clothing or premises. Such inappropriate action has left the Council in no position to offer a statutory defence, as defined in Section 58, Chapter 66 of the Highways Act 1980, as it is aware of the condition of the part of the highway to which any possible future action relates is likely to cause danger to users of the highway. As an Officer of the Council, "G" must not interfere with executive matters that are properly the responsibility of Planning Committee Members.

1.32 "G" is responsible for the preparation of written reports made by his Enforcement Officers and for advising Members at Planning Committee meetings and will be qualified to an appropriate level in Town Planning. "G"'s perverse dealings in this matter, has 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 his professional activities as a member of the Royal Town Planning Institute, he:

1.33 As per North East Lincolnshire Council's Constitution, "G" and "M" have both brought the Council into disrepute in this matter. As a result, they have not afforded Mr Webb the fairness and consistency in the treatment as an individual and were unjustified in their handling of and their colluded perverse reporting to the Planning Committee 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. 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 legislation contained in the Highways Act 1980, the General Permitted Development Order 1995 and The Town and Country Planning Act 1990.

1.34 On 16th October 2003, Mr Webb informed "G" of his dissatisfaction of the content of his letter dated 14th August 2003. "G" replied to Mr Webb's letter on 30th October 2003 and stated that Mr Webb had raised, "serious accusations about the competency and professionalism of certain members of my staff." "G" also offered to meet with Mr Webb along with Councillor "V" (Chairman of the Planning Committee), to address all issues, which Mr Webb felt were outstanding.

1.35 In reply to "G"'s letter, Mr Webb stated that he welcomed his offer of a meeting and also suggested Councillor "B" and Councillor "Q" to be present. It was the suggestion of Councillor "Q" to meet with "G" and Councillor "B" to discuss Mr Webb's complaints, when he met Mr Webb in the autumn of 2003. Mr Webb also stated that such a meeting would be able to present his case on how the LPA had made his life "sheer hell" during the past few years. Due to the number of issues Mr Webb wished to raise at such a meeting, he requested that a full morning should be put aside.

1.36 "G", in his letter dated 19th November 2003, described the nature of the two planning control breaches as a "stand off" between Mr Webb and the Council. He then considered that any meeting offered by him would have no benefit due to other issues Mr Webb had wished to raise and it would also inappropriate to have the Leader of the Council also present. He claimed that he offered such a meeting in "good faith" and would have gladly met with Mr Webb along with the Chairman and Vice Chairman of the Planning Committee but for Mr Webb to insist that a full morning is set aside is, as he believes, "inappropriate". "G" also claimed that Mr Webb, "had previous complaints against my staff, and the delivery of the planning service investigated, and given the outcome of these complaints, I am concerned that this appears to be a further attempt to have these matters revisited."

1.37 "G"'s description of the two planning control breaches as a "stand off" between Mr Webb and the Council is unwarranted and unprofessional as a Senior Officer of the Council; as such complaints are genuine complaints of planning control. He had offered a meeting to address all issues Mr Webb had outstanding but reneged on this when Mr Webb required the presence of two other Senior Members of the Council to be present. He also claimed that to put aside a morning to discuss the issues Mr Webb wished to raise would be inappropriate, as he believed that Mr Webb was trying to revisit previous complaints. Quite clearly this is not case, due to the nature of other complaints raised by Mr Webb to James Leivers. This is abuse of power and maladministration.

1.38 "G" also stated within his latest letter, that he offered to meet with the Chairman of the Planning Committee and the Vice Chairman of the Planning Committee, Councillor "X". Firstly, it was "G" who informed Councillor "V" of Mr Webb's complaints. "G" did not request Mr Webb's permission to speak with this particular Councillor. Then in a later letter to Mr Webb, "G" involved Councillor "X" in the same matters. Without consultation with Mr Webb, "G" in his letter dated 19th November 2003, copied his letter to both Councillor "V" and Councillor "X". It was not Mr Webb who involved these two particular Councillors from the onset but "G". His offer of meeting with Councillor "V" and Councillor "X" for one hour, who he says would not make judgments on any complaint, was quite perverse and insulting, as he knew nothing of the enormity of Mr Webb's complaints against his department. "G" simply dismissed Mr Webb's plead of half a morning for consideration in order to prevent him bringing forward his complaints to the Councillors in their entirety.

1.39 It is also evident that "G" had also spoken with "Y", (Director of Law) on the issues of Mr Webb's complaint of planning control breaches. In a letter from "Y" dated 27th November 2003 (Appendix 16), in response to other separate issues Mr Webb had raised with him, he states, "I understand from the Head of Development and Environmental Protection that there are also a number of outstanding matters which you have raised with him, which are to be the subject of a report to the planning committee early next year."

1.40 As explained by Mr Webb to "G" in his letter dated 5th November 2003, he has the power, if appropriate in the circumstances surrounding the nature of the complaint, to deal with such planning control breaches in legislation contained in Section 187A of The Town and Country Planning Act 1990. "G" can exercise such legislation using delegated powers conferred to him by the Council, in Part 3, Section 2 of the Council's Constitution.

1.41 It is Mr Webb's contention that his rights to confidentiality had been breached as the matters had been discussed by the two Senior Members of the Council and the Director Law, prior to the Planning Committee meeting on 16th January 2004 which ultimately may have had an adverse impact on any issues raised on those planning control breaches when discussed in that meeting with the Planning Committee members and as of a consequence may have seriously prejudiced Mr Webb's right to a fair hearing on those matters. Mr Webb's exclusion from any matter arising out of those discussions between "G", Councillor "V", Councillor "X" and "Y", may have conferred an unfair disadvantage upon him, as he was not allowed to participate in any such discussions.

1.42 In response to "G"'s letters to the Chairman and Vice Chairman of the Planning Committee, a letter dated 27th November 2003 was sent to both Senior Members and the Chief Executive, by Mr Webb. In his letter Mr Webb explained the circumstances surrounding his matters of concern and "G"'s persistent reluctance to pass information forward to Mr Webb. Mr Webb even offered to meet with both Councillors to discuss the dangerous situation, on site, in Walk Lane but neither Councillor had the common courtesy of replying to or acknowledging Mr Webb's letter.

1.43 On 29th January 2004, Mr Webb sent a letter to "G" requesting the outcome of his complaints, since been reported some 4 months earlier and required the reports etc., leading to the resolutions of those complaints.

1.44 In his letter dated 30th January 2004, "G" stated that both matters were reported to the Planning Committee on 16th January 2004 and they resolved that the hedge at Property 'A', Walk Lane required no further action but reminded the owners of the property, of the conditions and asked them to ensure that the hedge does not exceed its present height. He also stated that Mr Webb was unable to access the enforcement files as they were exempt from public disclosure as defined by the Local Government Act 1972. In response to "G"'s letter dated 30th January 2004, Mr Webb sent a further letter to him requiring the reports and background papers under the provisions of The Data Protection Act 1998 and also explained that "G" had already supplied an enforcement file in relation to Walk Lane sometime earlier, under The Data Protection Act 1998.

1.45 Since these requests, Mr Webb has not received any reply or acknowledgment to his requests under The Data Protection Act 1998 from "G". Mr Webb made such requests under The Data Protection Act 1998 and informed "G" if he was unable to facilitate his requests personally then it should be passed to the Council's Data Protection Officer or an Officer who was able to assist in doing so. The confidentiality bound by the Local Government Act 1972 is to protect the identity of the informant, namely Mr Webb. Therefore it is quite evident why there is no reason to release such information to him. If in the event that such a breach of planning control was upheld and an amendment to the original application was sought by the offender, then in order to submit his objection to such an amendment, Mr Webb would have to object personally in writing to the LPA, which would no longer be confidential information (as the informant) but that of information open to public scrutiny, as an material objection to that application for planning permission.

1.46 As per Part 2, Section 7 (1) of the Data Protection Act 1998, Mr Webb was to be informed by the Council's data controller, namely "G", whether personal data of which Mr Webb is the data subject was being processed by or on behalf of that data controller, since Mr Webb's request for such information in writing as prescribed by Part, Section 7 (2). Quite clearly such a request is in compliance with Part 2, Section 7 (4), as it is reasonable in all the circumstances to comply with the request without the consent of the other individual due to "G"'s release, as the data controller, of enforcement files in August 2003, as discussed earlier. Subject to Part 2 Section 7(4), "G", as the data controller, should have complied with Mr Webb's request under this section promptly and in any event before the end of the prescribed period of forty days beginning with the relevant day, that would have been the 9th February 2004, some 3 days later after "G" had received Mr Webb's request of 6th February 2004.

1.47 Evidently, "G" has brought the Council into disrepute in this matter in his abuse of powers causing maladministration that constitutes gross misconduct. His blatant disregard for The Data Protection Act 1998 has not afforded Mr Webb the fairness and consistency in the treatment as an individual and was unjustified in his handling of Mr Webb's requests under that Act and acted in a manner which was contrary to the Council's legitimate interest, as per the Council's Constitution. He has not assisted in the effective operation of the Council, which may lead to Mr Webb, by reasons of damage suffered due to contraventions by "G", as the data controller, of the requirements of The Data Protection Act 1998 as discussed in the preceding Sections of this complaint, to claim compensation from him as the data controller, for that damage - as per Part 2, Section 13 (1) of The Data Protection Act 1998.

1.48 Despite Mr Webb's complaints of planning control breaches of Property 'A' and Property 'B' in Walk Lane, it is also quite evident that "G" only dealt with that complaint of Property 'A', as stated in Mr Webb's letter of complaint to James Leivers dated 6th February 2004. Once more, as with the planning control breaches complaint made by Mr Webb in 2001, "G" has also totally ignored the planning condition requiring the hedgerows to be 3 metres minimum from the nearside carriageway of Walk Lane despite these facts been brought to his, the Chairman and Vice Chairman of the Planning Committee attention in retrospective letters sent to them by Mr Webb, as discussed earlier.

1.49 In Mr Webb's complaint to James Leivers, he states that any planning condition must fairly and reasonably relate to the provisions of any planning considerations affecting the land or it immediate surroundings. "G" had made no provision as to the modification or discharge of those planning conditions. His wording of "exceed its current height" is most ambiguous, as he does not state a determined height. As discussed earlier, Government Circular 11/95 states that any planning condition must be precise. The planning condition in this case is precise i.e., 1.05 metres. The current height of the hedgerow in this particular case is 2+ metres, therefore such ambiguous wording is open to personal interpretation and not a definitive requirement. Clearly, this particular hedgerow remains a breach of planning control not only due to its height but also its distance from Walk Lane, no more than 1 metre. If such conditions are considered to be no longer valid or effective then those conditions should be struck out from that planning permission. The Planning Committees decision, on recommendation from "G", of no further action is quite perverse and contrary to Section 172 of The Town and Country Planning Act 1990, as discussed earlier in this complaint and Section 72 of The Town and Country Planning Act 1990, which states;

Without prejudice to the generality of Section 70(1), conditions may be imposed on the grant of planning permission under that section -

(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorized by the permission.

1.50 On 9th February 2004, Mr Webb visited the Civic Offices, Knoll Street in order to speak with an Officer from the Highways Authority. On arrival at reception, Mr Webb explained to the receptionist that he wished to speak with a Highways Officer in relation to the danger of highway users in Walk Lane because of the hedgerows. Mr Webb was then asked to use the telephones in the main foyer and call the Highways Authority on their extension number. Having called the number, he was told by a lady in that department that someone would speak with him shortly.

1.51 Approximately 5 minutes later, the receptionist of whom Mr Webb first spoke with, gave him a piece of paper containing the name of "N" (Landscape Architect) and his extension telephone number. Mr Webb explained to the receptionist that "N" was unable to help him, as he was a Landscape Architect and not a Highways Authority Officer. The receptionist replied that this was all she was given in answer to Mr Webb's request to speak with a Highways Authority Officer and promptly left.

1.52 Again, Mr Webb called the Highways Authority department from within the foyer and spoke to the same lady. She confirmed that someone from the department would meet with Mr Webb in the foyer. Some 25 minutes had passed and no person from the Highways Authority attended the foyer. Again, Mr Webb called the Highways Department and requested to speak with "Z" (Highways Officer). He was then told "Z" was unavailable as he was sick and the two other Highways Officers were out on site. Mr Webb concluded the conversation by requesting to speak with a Highways Officer at their earliest convenience and gave his mobile telephone number.

1.53 Approximately 10 minutes later, after leaving the Civic Offices, Mr Webb received a call from a Mr "F". It was during the conversation with Mr "F", he believed he was talking to an officer of the Highways Authority. Mr Webb explained his concerns regarding the bends and in particular the hedgerows of Property 'B' and Property 'A' in Walk Lane. Mr "F" confirmed he would make a site visit and report any matters found.

1.54 On 11th February 2004, Mr Webb received a letter from "S" (Senior Enforcement Officer). In her letter she explained that she was looking into the complaint of Property 'B' and informed Mr Webb that "G" had addressed the issue of the hedge at Property 'A' in his letter dated 30th January 2004.

1.55 It was at this point that Mr Webb realized the matter of his complaint to Mr "F" was now in the hands of the Enforcement Team. Mr Webb called the Council's switchboard and asked to be forwarded to Mr "F" on 11th February 2004, in order to discover what findings he had made in Walk Lane. It was when he was connected to Mr "F"'s office, he found Mr "F" to be absent but his voicemail was switched on. The voicemail revealed Mr "F" was in fact "F" - an Enforcement Officer and not a Highways Officer as Mr Webb was led to believe.

1.56 The LPA were afforded the opportunity in dealing with the complaint Mr Webb made in September 2003. For reasons unknown, "G" only investigated and acted on part of that complaint, hence Mr Webb's complaint to James Leivers on 6th February 2004 of maladministration. It was Mr Webb's intentions to ascertain the professional opinion of the Highways Authority in the matters of the obstruction of vision in Walk Lane with due regard to the Highways Act 1980, as discussed earlier in this complaint.

1.57 Having discovered "F"'s status within the Council, Mr Webb called the Highways Authority and asked to speak with "Z". Mr Webb explained to "Z" the nature of his concerns in Walk Lane and also explained to him that "G" had allegedly dealt with these matters. Mr Webb also explained that he did not wish to cause any clash between the two departments but asked "Z" to confirm if the Highways Authority had been involved in any discussions with the LPA. "Z" confirmed that no member of the Highways Authority had been involved in such matters and in the knowledge of "G"'s involvement, he kindly agreed to meet with Mr Webb on site in Walk Lane on 13th February 2004.

1.58 On 12th February 2004, Mr Webb received a telephone call from "Z" who explained that he was stopped from attending the site visit and apologized. Mr Webb asked "Z" why he was unable to attend the meeting and was told that the Enforcement Team had instructed he could not deal with the matter. Having due regard to the nature of the complaints, Mr Webb asked "Z" to reaffirm that the Highways Authority had not been consulted as to those complaints raised since September 2003. "Z", again, stated that the Highways Department had not been involved at any stage of the complaints.

1.59 Part 2, Article 13 of the Council's Constitution states that the principles of decision making will be made in accordance with following principles;

1.60 It is quite evident that the events that transpired on 9th February 2004 in the Civic Offices are of maladministration. Mr Webb was firstly given wrong information and then made to wait for a member of the Highways Authority for 25 minutes until again, he called that department and was then informed that no member of that department was available to speak with him at that time. When "F" called Mr Webb he portrayed himself as an Officer from the Highways Authority and therefore it was Mr Webb's belief he was talking to an Officer from the Highways Authority and not the Enforcement Team. If "F" had revealed his true status within the Council at the time of his telephone call, then Mr Webb would have declined to discuss the matter with him. When Mr Webb last spoke with the receptionist in the Highways Department, he made it quite clear that he wished to speak with a Highways Officer, hence his visit to the Civic Offices. If he had wished to speak with an Officer of the Enforcement Team, he would have visited the LPA department. Despite "F"'s deliberate involvement in this matter and his promise of calling Mr Webb within a day or two of his telephone call, he never called or sent any correspondence to Mr Webb. This was a deliberate and willful obstruction to prevent Mr Webb gaining access to the services of the Highways Authority and "S"'s letter to Mr Webb further vindicates this. To date, Mr Webb is unaware of the outcome into this investigation of Property 'B' by the LPA but it would appear from the Planning Committee meetings minutes of 16th March 2004, that no further action was taken (Appendix 17). This is also maladministration, as it was "S"'s duty to notify Mr Webb of the outcome of this investigation within 15 days, as per the Council's Development Control Charter.

1.61 As per North East Lincolnshire Council's Constitution, "G", "S" and "F" 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 due regard to other Council departments professional consultation and advice, where they had an obligation to present the findings of those reports or records to the Planning Committee. As a result, they have not afforded Mr Webb the fairness and consistency in the treatment as an individual and were unjustified in their handling of and their colluded perverse reporting to the Planning Committee and acted in a manner which was contrary to the Council's legitimate interest, as per the Council's Constitution. This alone constitutes Gross Misconduct in the fact that they had negligently and willfully failed to comply with the legal requirements of the Council, the Highways Act 1980, The Town and Country Planning Act 1990 and the General Permitted Development Order 1995. 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
Sections 1.16 and 1.24
"M"’s failure to inform Mr Webb of his conclusions into his investigations, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.		 Not investigated.
Section 1.17
"M" investigated two properties, one of which Mr Webb did not complain of. These findings were also stored in that particular planning file of the property not complained of, contrary to Part 5 of the Council's Constitution.		 Not investigated.
Section 1.18
"S" told Mr Webb to consult a solicitor if he required a copy of the enforcement documents, contrary to Parts 4 and 5 of the Council's Constitution.		 Not investigated.
Section 1.20 and 1.26
"M" failure to observe the height of the hedge correctly, contrary to Section 172 of the Town and Country Planning Act 1990, Class A of Part 2 of the General Permitted Development Order 1995 and Part 5 of the Council's Constitution.		 “It would appear, quite clearly, that a error was made here in interpretation of the condition and measuring of the hedgerow on site. The Enforcement Officer used a height of 1.5m, not 1.05m as stated in the conditions and no account appears to have been taken that the condition refers to 1.05m in the height above the level of the adjoining carriageway as some of the hedges in question are located on a small bank.” No action.
Section 1.20
"M" failure to observe and investigate a second planning condition concerning the distance of 3m of any hedge from the nearest side of the carriageway, contrary to Section 172 of the Town and Country Planning Act 1990 and Part 5 of the Council's Constitution.		 Not investigated.
Section 1.21
"M" failure to prevent disclosure of confidential information, contrary to Part 5 of the Council's Constitution.		 “One of Mr Webb’s complaints in this matter is that on inspecting a file for a separate site unconnected with the Enforcement complaint for Property Number 1, he found a copy of the Enforcement report which contained his personal details and was available for any member of the public to view. Clearly, it would not be normal to find the confidential paperwork of an Enforcement complaint within a publicly viewable file.” “I would suggest that Enforcement files and copies of Enforcement correspondence sent to Planning Officers in respect of such cases should not be put on planning files which would be viewed by the public, or if this is normal practice, the file and the correspondence should ideally be marked in some way to ensure that the file is clearly shown to contain confidential information. That confidential information should be removed before the file is shown to a member of the public or third party."

No response.
Section 1.22
"M" failed to investigate in its entirety, the second property complained of, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.		 Not investigated.
Section 1.25
The Council failed in its duty, as prescribed by Section 130(3), Chapter 66 of the Highways Act 1980 to prevent as far as possible, the obstruction of that particular highway.		 Not investigated.
Sections 1.27 and 1.28
"M" never sought the assistance of a specialized officer – i.e., a Highways Officer, contrary to the Council's document ‘The Planning Enforcement System’, Part 3 of the Council's Constitution and Section 79, Chapter 66 of the Highways Act 1980 and Part 5 of the Council's Constitution.		 “I cannot really comment on the issue of Mr Webb being prevented from seeing a Highway Officer which would appear to be a reasonable request and, indeed, in most Authorities I have worked for it would be appropriate for the Enforcement Officer and the relevant specialist Officer, i.e. the Highways Officer, to be involved in a complaint of this nature which had reached the level of contention of these particular complaints. This again shows a pattern where matters raised by Mr Webb have not been properly checked or checked soon enough.” No action.
Section 1.30
"G"’s delegated decisions, contrary to Parts 3 and 5 of the Council's Constitution.		 Not investigated.
Investigating Officer's Conclusion “Mr Webb’s complaint that he was badly advised initially due to an error made when the matter was investigated, and subsequently when he challenged this finding is upheld as this led to delays in dealing with his Enforcement complaint.” No action.

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Local Government Ombudsman's Findings and Conclusion

Complaint section Findings Action/Outcome
Sections 1.16 and 1.24
"M"’s failure to inform Mr Webb of his conclusions into his investigations, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.17
"M" investigated two properties, one of which Mr Webb did not complain of. These findings were also stored in that particular planning file of the property not complained of, contrary to Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.18
"S" told Mr Webb to consult a solicitor if he required a copy of the enforcement documents, contrary to Parts 4 and 5 of the Council's Constitution.		 Refused to investigate.
Section 1.20 and 1.26
"M" failure to observe the height of the hedge correctly, contrary to Section 172 of the Town and Country Planning Act 1990, Class A of Part 2 of the General Permitted Development Order 1995 and Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.20
"M" failure to observe and investigate a second planning condition concerning the distance of 3m of any hedge from the nearest side of the carriageway, contrary to Section 172 of the Town and Country Planning Act 1990 and Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.21
"M" failure to prevent disclosure of confidential information, contrary to Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.22
"M" failed to investigate in its entirety, the second property complained of, contrary to the Council's Development Control Charter and Part 5 of the Council's Constitution.		 Refused to investigate.
Section 1.25
The Council failed in its duty, as prescribed by Section 130(3), Chapter 66 of the Highways Act 1980 to prevent as far as possible, the obstruction of that particular highway.		 Refused to investigate.
Sections 1.27 and 1.28
"M" never sought the assistance of a specialized officer – i.e., a Highways Officer, contrary to the Council's document ‘The Planning Enforcement System’, Parts 3 and 5 of the Council's Constitution and Section 79, Chapter 66 of the Highways Act 1980.		 Refused to investigate.
Section 1.30
"G"’s delegated decisions, contrary to Parts 3 and 5 of the Council's Constitution.		 Refused to investigate.
Local Government Ombudsman's Conclusion “When we spoke recently you believed that the Council was required under the Highways Act to take action where visibility was restricted by (for example) a hedge on the side of the road. I note that the law provides the Council with a power to take action rather than a duty. This means it is not forced to serve a notice in every case. I have, however, shown photographs of the hedges in question to the Local Government Ombudsman who considers that the Council is entitled to take the view that no enforcement action is required even though they may be over the height limit set by the planning permission. The corners are on a quiet road with little traffic and appear no different or more dangerous than many other corners on roads nearby. She does not, therefore, consider that the injustice caused to you by the alleged maladministration would warrant further investigation.” No action.

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