The Critique
The paragraph numbers have been added to Ms G Hayton’s email of the 12th December, decoded and scanned 2 days later to produce a reproducible document so that paragraph numbers could be added to it. My comments or corrections are in blue italics.
Mr Mick Dawson Email: mick.dawson@theharbourview.co.uk Date: 14 December 2018 Our Ref: GH Your Ref: 248789
Dear Mr Dawson
Your complaint about Councillor John Anglin I refer to your emails dated 19 September, 1, 12, 15, 22 (x2), and 26 October, 14, 20 and 22 November, and 11 December 2018 concerning your complaint about Councillor John Anglin. I apologise for the delay in responding to you. The point of each of those emails is made separately as much of evidence given in them conflicts with the records held by the Council.
1. I have reviewed your email correspondence and records held by the Council in my capacity as Deputy Monitoring Officer to consider whether your complaint falls within the Members’ Code of Conduct as adopted by the Council, and if it does, whether your complaint should be investigated further.
2. You complain that Councillor Anglin has failed to “obtain clarity’ concerning a planning application submitted by UK Docks relating to development on River Drive during a meeting at the Town Hall on 25 November 2013; Cllr Anglin not only failed to get clarity he repeated the Planning Officer’s claim that the shed was built according to the approved plans. No approved plans were produced at the meeting. It was not built to approved plans as the only approved plans show that the shed is nearly 3m taller than planned.
• misled or otherwise allowed the Local Government Ombudsman investigator to be misled as to the height and width of the development against the submitted plans. there should be a full stop at this point as what follows was not part of my complaint to the Ombudsman – and whether the differences in the height and width are “material” or “non-material” for the purpose of determining whether to commence enforcement proceedings. – the complaint to the Ombudsman was simply that Mr Cunningham said it was approved when it was not. The Council told the Petitioners “Enforcement action is at the discretion of the Council as Local Planning Authority.” It was his decision to determine that the variations in height (2.7m) and width (0.9m) were not material and that was made two months before the meeting.
3. It is helpful if I set out some of the background to your complaint. The subject of your complaint is the planning application and subsequent decisions of the Council not to commence enforcement proceedings against UK Docks. I have looked through my complaint: The complaint was that the variation in the height (from 8296/14) or the width (from 8296/1B) had been ignored. Perhaps I would have made my point clearer if I had said, “Why are they still working on the shed?” rather than, “As the applicant has not discharged condition 2 why is there no retrospective planning application?” I repeat, it was Mr Cunningham’s decision not to do anything in September 2013.
The planning application was granted in 1996 by the former Tyne & Wear Development Corporation and was subject to 5 conditions. Two of those conditions were “pre-commencement” conditions. The developer commenced works by building the foundations before May 2001 but did nothing further until 2013 when the developer re-commenced the building works. Residents complained to the Council. – the footings as laid in 2001 could not be used to build a structure without breaching the second condition.
4. The Council investigated the matter and found that the planning permission had been lawfully implemented. The Council later accepted that the measurements as taken in 2013 were incorrect – whether they were lawful was irrelevant. However it was probably not lawful to say that they had been approved. The measurements taken by Mr Cunningham in September 2013 have never been questioned. – and the width of the building was just less than 1 metre wider than permitted under the grant of planning permission.
The Council decided not to take enforcement action against the developer and considered the degree of departure from the grant of planning permission was “non-material” given the overall scale of the building. The width of the footings have been a material consideration since 2001 and Council actually stated that the variation in width was material in their replies to several residents as well as the response to our Petition in May 2014.
You disagreed and continue to disagree with the Council’s decision. – actually, Mr Cunningham’s decision has been defended even after I advised Cllr Anglin and the other people at the meeting that the shed was too wide.
5. You pursued your complaint through the Council’s complaints process and this culminated in a referral of your complaint to the Local Government Ombudsman, who decided to investigate the complaint. True and it reveals how easily the process can be corrupted – see Misuse of Council’s Complaints Procedure.
6. The Local Government Ombudsman issued her decision in 2015, finding that there was no fault in the way in which the Council had determined that enforcement action (with regards to the width of the development) should not be commenced. The Ombudsman found no fault with the Council’s decision that the difference in width of just less than one metre was “non-material”. She was just repeating what she had been told by a Senior Planning Officer of South Tyneside Council. The Council had in fact said the variation was material.
Furthermore, the Ombudsman disagreed with your assertions as to the height of the development and whether that was not in accordance with the plans. The Ombudsman found no fault in how the Council determined the permitted height of the landward end of the development was 12.5 metres plus 3 metres. If the Ombudsman had taken the trouble to examine the approved drawing as I had asked, she could do no other than agree with me that the statement plus 3m was false. The approved drawings state the permitted height is 12.8m which does not include the 3m. The 0.3m difference is because the gradient is 2.7m not 3m.
7. I have had the opportunity to consider your complaint and your subsequent correspondence in light of the Members’ Code of Conduct and the Council’s protocol for dealing with allegations of breaches of the Members’ Code of Conduct. I have also had the benefit of reviewing the Local Government Ombudsman’s decision. The Ombudsman’s decision reflects a Council Officer’s view which has little to do with reality. Misrepresentations to the LGO.
8. You do not state in your complaint which part of the Code of Conduct you believe Councillor Anglin has breached. Taking your complaint as a whole, it could be argued that you are seeking to
rely upon paragraphs 3 and 4 of the Code of Conduct that Elected Members: “must not do anything which compromises or is likely to compromise the impartiality of anyone who works for or on behalf of the Council”; and, “…must not conduct yourself in a manner which could reasonably be regarded as bringing the Council, or your office as a member of the Council, into disrepute.” No comment.
9. The Members’ Code of Conduct is clear that it only applies to an elected member of the Council when they (a) conduct the business of the Council (including the business of their office as an elected councillor or co-opted member) or (b) act, claim to act or give the impression they are acting as a representative of the Council. The site of the development is within Councillor Anglin’s ward and he was contacted by his constituents to see if he could help them to progress their complaint and obtain the clarity you refer to in your email correspondence. He was contacted by the Vice Chair of the Residents Committee before the TGA was resurrected. He volunteered to find out if the shed had been built to plan, ‘clarity’ was the word he used at the first meeting. As far as we were concerned he went to find out which end of the shed has a planned height of 15.5m. We maintained it was the river end but the Council maintained it was the road end. As simple as that.
I therefore find that Councillor Anglin was acting in his official capacity when he attended the meeting on 25 November 2013 and the Code of Conduct would apply. True but he failed to take any minutes and there was no record of what was seen. Following the meeting we were sent drawings that would under normal circumstances would be cosidered as a fraudulent misrepresentation of the approved height.
10. In deciding whether to investigate your complaint, I must also consider a number of other factors, – to avoid answering the complaint – including but not limited to, whether the complaint has already been the subject of an investigation or other action, whether under the Code of Conduct or another regulatory authority; whether the complaint is about something that has happened so long ago that there would be little benefit in taking action now and whether the complaint appears to be malicious, politically motivated or “tit-for-tat”. The residents were mislead by the Planning Officer and Cllr Anglin appears to be party to the residents being mislead (re-read emails dated 19 September, 1, 12, 15, 22, and 26 October, 14, 20 and 22 November, and 11 December 2018 for the facts or wait for quick guide).
11. The wider issues of your complaint concerning the substantive planning application and the decisions and conclusions reached by the Council has been subject to a thorough investigation by the Local Government Ombudsman in 2015. The complaint to the Ombudsman was posted in December 2014 after an irregular path – the irregular path was entirely due to the Council’s responses to the formal complaint raised when work restarted on the shed in January 2014 – through the Council’s Complaints Procedure The meeting which you complain about took place in 2013. It is my view that you had the opportunity to raise during the Council’s internal complaints process and the Ombudsman investigation any concern that you reasonably held that Councillor Anglin had acted in a way in which meant the Ombudsman’s investigator had been misled during the investigation. Councillor Anglin’s apparent complicity in the Council/UK Dock’s claim that the shed was approved pales into insignificance when my dealings with the Council are examined. When it became obvious that they were misusing the complaints procedure, I did complain about their abuse of the system to the Head of Development Services but was ignored. You had the opportunity to comment upon the Ombudsman ’s draft report before it was finalised and you exercised that right to comment. The Ombudsman’s investigator considered and discounted your comments.
See comments against paragraph 4 re the width and paragraph 6 re the height. Note:- I used an approved document to show the Investigator that shed was too high. She chose to base her decision on an unapproved document from 1997 misrepresented to her by a Senior Planner of the Council. Need I say any more? Also if you look at her first draft you will see that she fails to mention the height altogether as does the Council in their Stage 3 response to the original complaint. Let me assure you that it was not a coincidence, both Customer Advocacy and the Inspector were told about the variation in height with reference to the approved document 8296/14.
12. A significant period of time has passed since Ombudsman concluded her investigation into your complaint and an even longer period of time has passed since the meeting actually took place. It would have been reasonable to expect you to have raised your Code of Conduct complaint at a much earlier stage than this. A delay of 5 years is significant, even if you had waited until the conclusion of the Ombudsman investigation, a further 3 years has passed since then. I understand that you have been subject to periodic contact restrictions as a result of your seeking to re-open the substantive complaint about the planning application and the decision of the Council not to commence enforcement proceedings. I have considered this in light of whether this has or would have prevented you from bringing your Code of Conduct complaint at an earlier date and I conclude that it would not. – why was I not referred to the Monitoring Officer in May 2014 i.e. 6 months before I was passed to the Ombudsman because Customer Advocacy did not want to answer the question “Who was responsible for making sure that structures were built to plan?” *** – A Code of Conduct complaint could have been made in writing to the Monitoring Officer at any point in the last 5 years and such a complaint would have been considered separately to your complaint about the planning decisions of the Council. I first raised this with her on the 19th September 2018 and that was within 5 years of November 2013.
13. You complain that Councillor Anglin failed to provide you with the clarity you sought at the meeting. An Elected Member may set out with an objective to support their constituent but ultimately may not achieve that goal, for a variety of reasons, not least that the constituent’s position is simply wrong in law. This is not a conduct failure and does not fall within the remit of the Code of Conduct. I can find no evidence that Councillor Anglin misled or otherwise allowed the Ombudsman to be misled. When I pointed out to him that the shed was wider than planned in December 2013 he made no attempt to evaluate whether my claim was false or Mr Cunningham was lying. Either Figure 1, or the second figure (shown below) shows that my claim was not false and my path through complaints procedure would have been completely different.
14. Further, it is my conclusion that you are seeking to use the Code of Conduct process to re- open a matter which has already been investigated and responded to by the Council; this is an abuse of the Code of Conduct process. You said in paragraph 13 that a Code of Conduct complaint could have been made in writing to the Monitoring Officer at any point in the last 5 years and such a complaint would have been considered separately to my complaint about the planning decisions of the Council and now you are conflating the two so that you can claim it is I rather than you that is abusing the system.
15. Consequently, I do not believe that there is any merit in investigating this complaint further and I have concluded that no further action should be taken in respect of your complaint. Then how do you explain the misinformation/misrepresentations that a Senior Planning Officer gave to the Local Government Ombudsman particularly with regard to the sequence of events (paragraphs 19-23) and the planned height of the shed (paragraphs 30-38).
16. If you are dissatisfied with my decision not to investigate your complaint further, – there is not any complaint reference number for feedback (FBR) – then under the Council’s protocol for dealing with allegations of breaches of the Members’ Code of Conduct you may request the Monitoring Officer to reconsider this decision. – in paragraph 30 the Ombudsman said: “Mr X (that’s me) says the shed is also 3 metres higher than shown in the 1996 plans. He says a scale measurement from the plans shows a total height of 12.75 metres at one end of the shed.” If you had looked as I had suggested, at drawings 8296/2 and 14 you would see that 12.75m does represent the planned height of the shed and that paragraphs 31-38 are no more than flights of fancy seeded by your Senior Planning Officer. You can request a review by emailing monitoring.officer@southtyneside.gov.uk – it would save a lot of toing and froing before a review was requested, if the drawings ../2 and ../14 were examined, it appears that it was not done as requested on the 12th December, and declaration made as to whether I and the other residents are correct about the planned height or the Planning Office/UK Docks. It is a binary choice true or false (12.75 or 15.5m). It may be a good idea to take Mike Harding and whoever is in charge of Planning, Stuart Wright, along as well.**** – or in writing to Mike Harding, Monitoring Officer, South Tyneside Council, Town Hall & Civic Offices, Westoe Road, South Shields, NE33 2RL.
Yours sincerely,
Gill Hayton
Deputy Monitoring Officer, Legal Services, Business and Resources