adjective: (of an action) convenient and practical although possibly improper or immoral
noun: a means of attaining an end, especially one that is convenient but possibly improper or immoral
What’s This Post About?
This post is a story about the competence (or otherwise) and questionable probity of a local government authority, Moray Council; my own local government authority in fact. It’s a story about what happens when the state applies a policy of ‘expediency’ as an excuse for behaving improperly or incompetently or both, whilst dressing up its actions as pragmatism.
It’s about what happens when the state gets its priorities wrong, fails to uphold the law, sides with a transgressor and creates the running sore of a chronic neighbour dispute. This story is a practical example of why I’m a Libertarian; specifically, why I’m permanently suspicious of the workings of the state – in this case the state in the guise of my local government authority, Moray Council.
Let’s Make Up Our Own Rules
Once upon a time, 10 years ago in March 2008, my next-door neighbour – let’s call him Mr Steed (not his real name) – decided flagrantly and systematically to flout both planning and building regulations.
I live on the coast and my home overlooks the Moray Firth and beyond to the mountains of Wester Ross. My rear gardens are surrounded by a 2-metre-high ancient stone garden wall on three sides of a square; my home itself forms the fourth side of the square.
On his side of the south boundary wall of my rear gardens my neighbour, Steed, took it upon himself one day to build a crude, breeze-block retaining wall, without engineering design or a Building Warrant. Steed created a new site of about 100 metres square or so. Our land is contiguous, so my south boundary wall formed the north boundary wall of Steed’s new site.
Steed then proceeded to tip debris, earth, sand and other crappy materials into his newly-formed ‘box’ enclosed by the crude retaining wall. Now, you need a Building Warrant to build retaining walls, but you need a Building Warrant particularly if you intend to raise land for development by two metres or more. Notwithstanding, and without a Building Warrant, Steed raised his site by two metres, right up to the very top of my south boundary garden wall.
Although not clear to me at the time, Steed’s intention was to position two static caravans on his unauthorised raised site.
So, I was faced with the prospect of having a couple of monstrosities like the thing you see pictured above, perched at the top of my 2-metre-high rear garden wall, directly overlooking my gardens and into the private rooms at the rear of my home.
Moray Council’s Response
When it became clear to me that Steed was up to no good, I informed Moray Council’s Planning Department. The Planning Department is concerned with regulating and enforcing all matters to do with the law pertaining to the development of land and buildings, and the regulations regarding how buildings are constructed. The Planning Department did nothing.
After nearly two months of Steed’s works being progressed, patently in breach of planning and building regulations, again I informed Moray Council. The Planning Department did nothing.
Now, bear in mind that Steed was a local businessman; he owned the caravan park next to my home. He employed a few people. His caravan park brought visitors to the village and the beautiful coastal area where I live. At the time I wondered if perhaps the Planning Officers (the Council officials who deal with planning and building matters) felt that Mr Steed merited being left alone? After all, Steed was good for the local economy and I was just one pesky neighbour who might be considered dispensable. Now, I don’t know if this was in fact the Planning Officers’ party line, but I do know that they were moribund when I had pointed out to them that Mr Steed appeared to be breaching planning and building regulations with a vengeance.
Involving The Court
Frustrated at Moray Council’s lack of interest in the matter, I went to see my lawyer. He said that there was indeed a prima facie breach of planning and building regulations taking place on the site. Therefore, I could raise what is known as an ‘interdict’ in the court. An interdict would have the court instruct Steed to cease and desist from what appeared to be his irregular behaviour, pending a proper investigation into what he was up to.
Immediately prior to lodging my interdict with the court, I informed Moray Council of my intentions. Suddenly, the Planning Department took an interest in what was happening on Steed’s site. After all, had the interdict been served on Steed, Moray Council would have been obliged to explain to the court what they were doing about the apparent breach of planning and building regulations (answer: nothing).
Now, you will not wish to read every detail pertaining to the subsequent years of Moray Council’s obfuscation, prevarication and incompetence, and what I consider to have been behaviour characterised as much as anything by a lack of probity; at best characterised by unprofessionalism. So, I’ll now run the story at Fast-Forward.
To this day, a decade after Steed proceeded to upfill his site without authority, the site remains raised to a height of two metres above garden ground level, without statutory approval (there is no stamped, approved Building Warrant for the site, nor does it have the benefit of planning permission) and directly overlooking my rear gardens.
Over the years – during which I have fought tenaciously to protect my perfectly reasonable rights to amenity, privacy and security – my case has been referred to Moray Council’s Planning Committee on numerous occasions; it has been referred to Scottish Government Ministers for adjudication on 4 occasions; my local Member of Parliament has taken an interest in the matter; it has been the subject of a Formal Complaint to Moray Council’s Chief Executive; there have been Planning Consultants and lawyers involved on Steed’s side and mine; the site has been the subject of a request for a Certificate of Lawful Use (rejected); the case has been referred to the Scottish Public Services Ombudsman; and the case has been taken, by Steed, to the highest court in the land, the Court of Session in Edinburgh – who threw it out.
The cost to me financially and emotionally throughout this fiasco has been significant. Goodness knows what the cost has been to Moray Council’s taxpayers.
During all the years of this imbroglio, and right from the start, Moray Council’s attitude to me, and its performance in handling what was always a slam-dunk example of a breach of planning and building regulations has been variously disingenuous, patronising and reprehensible. In fact, above all else, Moray Council’s behaviour has been inexplicable and unfathomable; which is why I have difficulty avoiding concluding that somebody or some people, somewhere in Moray Council’s Planning Department are either dishonourable or incompetent or both to the point of misconduct. Moray Council would argue furiously against this allegation of course and have done so in the past when I’ve accused them of acting out of fear of, or favouritism towards Steed, the transgressor. However, I’ve always made such observations on the basis of the circumstantial evidence.
As my Planning Consultant is on record as observing, ‘it is evident that [Moray Council’s Planning Officers] have done nothing to assist you over the past 10 years. In fact, they seem to have done everything within their powers to assist [Steed], so your frustration and anger is understandable’.
Scottish Government Involvement
In the case of the involvement of the Scottish Government, a person called a Reporter acts on behalf of Scottish Government Ministers. The role of the Reporter is to inspect the site in question, investigate the situation, weigh up the planning policies as they apply and then decide what should be done. The Reporter’s decisions are contained within a Decision Notice which is then served on the local government authority – Moray Council in this case.
In theory, the Reporter’s decision is final. In other words, a local government authority is expected to implement a Decision Notice.
In my case, in 2010, following an appeal against one of Moray Council’s Planning Committee decisions inimical to Steed’s dodgy intentions, a Reporter issued a Decision Notice regarding the unauthorised, raised site which included, amongst other observations and instructions, the following statements:
‘[The raised site] is a significant engineering operation outside the scope of [the law] …’
‘The [raised site] is oppressive …’
‘No reasonable planning authority would knowingly approve caravan stances 2 metres higher than residential rear gardens …’
‘[The raised site] is unreasonably detrimental to the amenity of the closest residents, restricting the enjoyment they might reasonably take from their rear gardens …’
‘The potential occupation of the raised ground by caravans, or even parked vehicles or plant threatens an unreasonable loss of general amenity and privacy in the adjacent rear gardens and through certain windows …’
‘Removal of both [the retaining] wall and the ground upfilling are, therefore, fully justified …’
You see, the point is that Scottish Government Ministers instructed Moray Council to arrange for the taking down of the unauthorised, raised site. But Moray Council’s Planning Officers had other ideas; which makes me wonder if they were acting with probity? Why else would they have flown in the face of Scottish Government Ministers’ instructions? Well, the Planning Officers would say for reasons of ‘expediency’: remember, that’s an action which is convenient and practical, although possibly improper or immoral. Expediency is a very useful policy in situations like this; it’s a gift to state bureaucracy.
Let’s Favour The Transgressor
Remaining in Fast-Forward mode, in the years since that seminal Decision Notice, Moray Council has managed successfully to circumvent implementing those particular Reporter’s decisions. To be specific the Council’s Planning Officers, for reasons of ‘expediency’, have worked tirelessly to prevent the unauthorised, raised site from being taken down. Their view, I believe, is that it would have been disproportionate or unfair to have Steed take down the site that he’d put up; a site that Steed had no legal right to put up in the first place.
Steed fought hard at every stage to have his unauthorised site granted statutory approval: he applied for retrospective planning permission (rejected by the Council’s Planning Committee); on more than one occasion he appealed to the Scottish Government (hence the Reporters’ visits); he defied Enforcement Notices (which is illegal) and was, therefore, subject to Stop Notices; he appealed against other Moray Council decisions; he appealed against Scottish Government Minister’s Decision Notices and he took the matter to the Court of Session; he even engaged in a campaign of vindictive planting of Leylandii all along the south boundary wall of my rear gardens. Steed was bitterly determined to get his own way.
As far as I’m concerned, Steed was a bandit, an outlaw. Clearly, Moray Council’s Planning Officers didn’t see Steed in the same light. Indeed, the evidence suggests that the Planning Officers saw Steed rather more as the victim in this situation, to be protected as far as possible from the cost of righting his own wrong. I got the impression, and still have it, that the irritating Mr Moraymint could go to hell.
Regrading Of The Site
For reasons that have never been explained to me, Moray Council’s Planning Officers bent over backwards to accommodate Steed; they went through contortions to circumvent or tone down Planning Committee decisions, to subvert the will of elected councillors, to point out to me that any Council response had to be proportionate and, ultimately, they chose to avoid enforcing the original Reporter’s decision that the unauthorised, upfilled site and its retaining walls should be taken down in toto.
Presumably fearful of Steed’s persistently aggressive stance, the Council arranged for some trivial ‘regrading’ of the site which, in fact, meant the site remained upfilled and capable of taking caravans, vehicles and plant. To indicate the rank ineffectiveness of the Planning Officers’ decision notionally to comply with the relevant Decision Notices, ie by having the site ‘regraded’, take a look at these photographs of the site …
When I’ve challenged Moray Council in the past, as I have done with monotonous regularity over 10 years, the Planning Officers argue that they’ve been ticking all the right boxes and it’s just too bad that the outcome of this case looks remarkably like they’ve feared or favoured the transgressor, Steed.
So, today the site remains upfilled to the top of my 2-metre-high ancient garden wall, without statutory approval.
The de facto position of Moray Council is that the upfilled site should remain for what it is: ie a raised site, albeit without any evidence of competent engineering design, held in place by crude, breeze-block retaining walls, without a Building Warrant, without a Certificate of Lawful Use, but a raised site nonetheless which, funnily enough, is ideally suited for the positioning of caravans, vehicles, plant or anything else the landowner chooses to plonk on it directly overlooking my rear gardens and into my home.
So, guess what? That’s what the current landowner does. You see, Mr Steed sold the caravan park complete with the unauthorised, raised site to Mr Burke (not his real name) a few years ago. Nowadays, Burke positions on the unauthorised, raised site a varying collection of caravans, vehicles and plant, like this …
The result is precisely what Reporters said would be the result if the site remained raised: an unacceptable violation of my amenity, intrusion into the privacy of my rear gardens and the rear of my home and, as a consequence of the previous two violations, a risk to the integrity and security of my property.
Moray Council’s incompetence and extremely doubtful moral stance has fomented a chronic, decade-long neighbour dispute originally between Steed and me, and now between Burke and me.
All I’ve ever requested was that Moray Council enforced planning and building regulations on the site in question, consistent with extant local and national policies, and in compliance with Decision Notices served on Moray Council on behalf of Scottish Government Ministers. However, the facts speak for themselves: an unauthorised, raised site without statutory approval remains to this day an unauthorised raised site without statutory approval, contiguous to my home. The site is, therefore, open to abuse by its owner and so, surprise, surprise, the site is abused by its owner.
In fact, not only is the site abused, but I’ve been abused too. Recently, Burke decided to go public with this matter on Facebook. On his caravan park page, he put up a picture of my home with a big, red ring around it. Anyone in my village could tell straight away that it was my house. Burke said that the house was the home of a vindictive neighbour (ie me) who should not have purchased a house next to a caravan park if he didn’t want to look at caravans. Burke accused me of being a NIMBY (Not In My Back Yard) character who clearly merited being outed in public. So, every man and his dog weighed in making unkind comments about me in the way that only social media can bring out the worst in people. Hours later when I went to my village Post Office, the Postmaster told me that he and others had seen the Facebook comments and that it was now common knowledge, according to his customers, that I was the bad guy, the village pariah.
However loudly Moray Council’s Planning Officers bleat about how they’ve ticked all the right boxes (which is their stock response), the indisputable fact is that a cohort of Moray Council’s officials have buggered up spectacularly this Planning Enforcement case and in so doing have screwed me over royally. And do you know what? There’s absolutely nothing I can do about it. It’s an example, like I said right at the top of this post, of what happens when the state gets its priorities wrong, fails to uphold the law, sides with a transgressor and, in my case, creates the running sore of a chronic neighbour dispute. In situations like this, you realise just how impotent you are as an ordinary citizen when the state decides to screw you over.
Observations And Messages
So, the question is why have Moray Council’s Planning Officers consistently engineered matters to uphold the permanence of the unauthorised, raised site, despite having been instructed by Scottish Government Ministers to have the upfilled site taken down by the landowner, or to take it down themselves? Remember, the Reporter’s decision is final – unless you’re Moray Council, it seems.
What possible explanation could there be for such a contrary decision in the face of the raft of planning policies, third-party observations and Scottish Government decisions which provided Moray Council overwhelmingly with all the legal and moral force it ever needed to enforce planning and building regulations on the site? In other words, to have the site taken down.
What I do know is this. Since 2008 I have learnt the hard way the following about the workings of the state in the form of my own local government here in Moray:
First and foremost, Council officials rule the roost. Local councillors are window-dressing for democracy. In my case, councillors seemed to have had little understanding of their roles and responsibilities in this respect, not least of which is that Council officials should operate at the bidding of elected members and not vice versa. Whilst my local councillors seem to have had good intentions throughout this ordeal, they’ve been next to useless in reality. The Planning Officers have walked all over them. As one of my local councillors observed, ‘[Mr Moraymint] I’m sorry to say that you have been badly served by the Council’s officers’.
This observation links to the first one above. Often the tone of the correspondence I received from the Planning Department, in particular from the Head of Planning was one of arrogance. At one point I was told by the Head of Planning that, in effect, my arguments didn’t really count for much because Steed’s arguments had been put forward by ‘a well-known and highly respected planning consultant’. On another occasion, another Head of Planning (yes, this case has been going on for longer than people have been in jobs in Moray Council) told me that I was being selective about the facts of the case and so should, in effect, wind my neck in. The single most important and indisputable fact is, of course, that an unauthorised raised site remains to this day an unauthorised raised site thanks to the unfathomable decision-making and/or dubious morality of Moray Council’s Planning Department. Notwithstanding, the Head of Planning saw fit to reprimand me for playing fast-and-loose with the facts in my criticisms of his Department. Yeah, right.
My third observation relates to the staggering waste of taxpayers’ money associated with this case. Moray Council could have resolved this matter within a few weeks of the original transgression if it had so wished. The Council could have instructed Mr Steed to take down his unauthorised site. If Steed had failed to do so, Moray Council could have moved in and taken the site down itself and sent Steed an invoice. If Steed had refused to pay the bill, the Council could have taken him to court. Full-stop. Instead, 10 years later, the Council is still expending, ie wasting taxpayers’ money on this case. It’s extraordinary.
Then there’s the organisation which despatches Reporters on behalf of Scottish Government Ministers to situations like the one I’ve described here; it’s called the Planning & Environmental Appeals Division (PEAD). Whilst I’m generally content with the various findings and decisions of PEAD’s Reporters, PEAD itself is a toothless tiger. When I asked PEAD what it intended do about Moray Council’s pathological incapability to implement its Reporters’ decisions, I was told it was not a matter for PEAD but instead a matter for the democratic workings of the Council. PEAD had no way of enforcing the Decision Notices it issued. I was expected to rely on my local councillors to fight my corner – and a waste of time that proved to be.
Finally, second only to the pointlessness of complaining to Moray Council (which I did formally at one stage, but the Chief Executive saw fit to declare that his Planning Officers had performed impeccably) was to complain to the Scottish Public Services Ombudsman (SPSO). I raised a formal complaint to the SPSO along the lines of this blog post, but more detailed (can you believe it?) and backed up with all the relevant correspondence and associated details. The SPSO responded along the following lines:
‘Dear Mr Moraymint, we don’t understand the problem here. Moray Council’s officials have ticked all the boxes. If you don’t like the outcome, there’s nothing we can do about it. You’ll need to raise the matter through normal democratic channels by getting your local councillors to fight your corner. Yours etc, SPSO’.
And a waste of time that proved to be.
Questions To Moray Council’s Chief Executive
So, I’d like to end this lengthy post by posing a few questions to Moray Council’s Chief Executive whom I know is familiar with this case:
Do you stand by your Planning Officers’ decision to leave the unauthorised, raised site intact such that it continues to be ‘unreasonably detrimental to the amenity of the closest residents, restricting the enjoyment they might reasonably take from their rear gardens’ (the Reporter’s words)?
Do you stand by your Planning Officers’ decision to leave the unauthorised, raised site intact such that it continues to offer ‘the potential [to be occupied] by caravans, or even parked vehicles or plant threatening an unreasonable loss of general amenity and privacy in the adjacent rear gardens and through certain windows’ (again the Reporter’s words)? Take a look again at the photographs above to remind yourself, if that helps you to answer this question.
Do you feel that your Planning Officers have complied with the Reporter’s observation that ‘removal of both the retaining walls and the ground upfilling are fully justified’? Again, take a look at the photographs to see to what extent the upfilling and walls have been removed.
Have your Planning Officers at all times advised elected members on the letter and spirit of the above observations made by Reporters on behalf of Scottish Government Ministers to ensure that democracy is aligned with bureaucracy in Moray Council?
You see, if you answer ‘Yes’ to any or all of the above questions, then I wonder whether you should be in your job. In particular I have to question your moral fibre if you think that your officials have behaved competently, fairly and with probity in their handling of this case. If you close ranks and continue to back your Planning Department on this matter, then in my opinion you’re abrogating your responsibility as a Chief Executive.
In publicising my experiences of dealing with Moray Council’s Planning Department like this, I’ve endeavoured to keep my post as fair as possible – bearing in mind that I’m pretty frustrated at how the matter’s been handled this past 10 years. I don’t want to libel anybody; I’ve explained the facts as they are. In my view, the facts speak for themselves. Moray Council’s Planning Officers have in the past defended their actions to me and, indeed, have got terribly agitated from time to time (the Council doth protest too much methinks). But nobody from Moray Council has ever yet explained to me why the unauthorised, raised site was not taken down as it should have been in the first place.
Hiding behind ‘expediency’ doesn’t cut it. Expediency is just a convenient excuse for doing the wrong thing. The question for me is, ‘Why exactly did Moray Council’s Planning Officers consciously choose to do the wrong thing?’ On what basis did the Planning Officers decide that, on balance, it was better to favour Steed’s position than mine? What is the justification for, and planning merit of sustaining a breach of the regulations rather than enforcing the regulations and having the site taken down?
Throughout this lamentable episode Moray Council has always had the legal and moral high ground. Furthermore, Moray Council always had the resources, the superior firepower if you like, to fight Steed’s transgressions. Why did it not do so?
Today, it grieves me that I’m still on the receiving end of this nonsense thanks to Moray Council’s bizarre and highly questionable attitude to enforcing planning and building regulations in this instance. I don’t suppose I’ll ever get an explanation for this mess, still less any form of apology from the Council; even less chance of compensation. I imagine the chances of Moray Council ever having the unauthorised, raised site taken down are minuscule. That boat has long since sailed.
Consequently, the prospect for me henceforth will almost certainly be a kind of Groundhog Day existence; an interminable dispute with my neighbour, Burke, who will, I fear, repeatedly push his luck with exploiting the unauthorised, raised site; that much is inevitable it seems to me. Meanwhile, I’ll be forced to plead time and again with Moray Council to enforce the regulations, ie to prevent the positioning on the site of caravans, vehicles or plant to the detriment of my amenity, privacy and security.
In fact, the Head of Planning told me very recently that it was just too bad if Burke positioned stuff on the site; it’s Burke’s land and the Council can’t stop him from using it as a car park or a plant yard or a dump for spoil or whatever (all of which happens). The Head of Planning also told me that if people took advantage of the unauthorised, raised site to step on to and wander about on the top of my 2-metre-high garden wall – which is what some people do, usually children – then that was also too bad; I should see my lawyer about it.
And around and around we go. Whilst it’s a nightmare for me it’s justification, of course, for the salaries of the Planning Officers and their Chief Executive as they go about ticking boxes. Salaries funded by my Council Tax and yours if, like me, you happen to live in Moray.
You can see now perhaps why I’m a Libertarian.
- Assistance. If there’s a lawyer out there who knows of a course of action which would permit me to redress this situation, notwithstanding the long history of the case, please get in touch with me. I’d be fascinated to hear from you. I don’t have the resources to instigate a judicial review, by the way. If I did, I would have done so long before now. Is there anywhere to go here, or should I just accept that I’ve been roundly shafted by the state?
- Records. For 10 years, I’ve retained every single word of this case on file: every letter, every email, every off-the-record comment, a note of every telephone conversation, every photograph of the site. If anybody ever wanted to take me to task on this post, feel free; I’d eat you for breakfast.
- Caravan Park Improvements. I never wanted to be, nor do I want to be today in dispute with my neighbour. My dispute has always been with Moray Council. I’d like to go on record to say that Mr Burke has done a terrific job of renovating the caravan park since he purchased it from Mr Steed. He’s invested significantly in a range of high quality, good style improvements which is paying off. More people are coming to the caravan park to enjoy its spectacular location and to benefit the local economy. Despite the Facebook comments vilifying me, I like watching locals and tourists enjoy themselves in my beautiful village here by the sea; I’m very fortunate to live here. Good job, Mr Burke. It’s a shame that between us we’ve inherited such a wreck of a situation from Mr Steed, but mainly from Moray Council.
- What’s Your Experience? Finally, if you, dear reader, have had a bad experience with Moray Council’s Planning Department then please get in touch with me. Your case might merit the same exposure that I’ve given my case here today. It’s called freedom of speech.
If you think Moray Council is quite within its rights to have performed as it has in this matter, then thanks for reading this far. Perhaps you could drop a line to Moray Council’s Chief Executive congratulating him on the sterling work of his Planning Department.
On the other hand, if you’re horrified by what you’ve read here, why not share this post with others on Facebook, or Twitter, or by email. The more that people get to know about situations like this, the more pressure is applied on incompetent and immoral state officials.
Thanks for reading anyway; have a great day.