Doncaster Metropolitan Borough Council (18 012 186)

Category : Other Categories > Commercial and contracts

Decision : Upheld

Decision date : 10 May 2019

The Ombudsman's final decision:

Summary: Mrs B complained on behalf of Company C, that the Council had incorrectly advised Company C in 2016 about removing damaged fencing around a games area, which it managed. Company C removed the fencing on the basis of the advice. The Council then issued a breach of condition notice requiring the fence to be replaced. This cost Company C over £10,000. We found fault with the initial advice the Council gave, but do not consider it caused Company C injustice as it was not reasonable for a specialist company to rely solely on that advice to remove the fence.

The complaint

  1. Mrs B (a manager of Company C) complains that Doncaster Metropolitan Borough Council (the Council), in respect of a site Company C owns:
    • in 2016 gave incorrect advice regarding removal of play equipment;
    • failed to acknowledge its advice was incorrect; and
    • issued a breach of condition notice following the removal of the fence meaning Company C incurred costs of over £10,000 reinstating a fence.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.

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What I found

  1. The Council granted planning permission some time ago for housing development on a site in its area. This included the creation of a public open space with a play area. The site was owned by a housing developer.
  2. The permission contained two planning conditions requiring the development to be built in accordance with the details approved as part of the application and the section 106 agreement. A section 106 agreement is a private agreement between the council and the developer to make development acceptable in planning terms. There was a third condition relating to landscaping which said the development could not take place until a landscaping scheme had been submitted to the Council and approved. This specified that the landscaping scheme should include ‘3m ball stop fencing on the south boundary of the kickabout area’. The approved landscaping plan shows three-metre high ball-stop fencing on three sides of the kick about area with existing chain-link fencing retained on the fourth side and one metre high metal fencing around most of the play area with existing chain-link fencing on one side. The third condition also required a maintenance specification for a minimum of five years.
  3. The section 106 agreement required the developer, before development could start, to submit a plan showing the details of the lay-out and equipment for the public open space area along with details of the arrangements for future management and maintenance of the site. The section 106 agreement contained the planning permission and the conditions described above.
  4. The housing developer employed Company C to manage the Public Open Space. Company C is a management company which owns, manages and maintains open spaces on new build developments. The Council says Company C produced the management plan required by the planning permission and was responsible for maintenance of the area. It also says Company C received a management fee from residents to maintain the Public Open Space.
  5. In February 2016 Company C sent an email to the Council’s Technical Support and Improvement Team. It said:

“Just wondering if you could advise on the matter of a MUGA [Multi-use games area) which our company owns and manages located at XXX, next to a play-area… We would like to enquire whether we can take this equipment out entirely?”

  1. The Council replied just over an hour later:

“I have had a word with a planning officer with regard to your query and they have confirmed if it is owned and managed by you any removal of equipment is fine”.

  1. On the basis of this reply Company C removed all the fencing around the multi-use games area.
  2. The Council then received complaints and concerns about the safety of the games area because balls were being kicked onto the road and children were at risk trying to retrieve them. The Council says it had positive discussions with the housing developer who still owned the land, to reinstate the fencing.
  3. In August 2017 Company C wrote to the residents of the development explaining that it had removed the fence in 2016 because it was damaged beyond economic repair and removal was the most cost-effective solution. It said it had obtained permission from the Council to remove the fence but the Council’s enforcement team had recently contacted the Company with a review to reinstating the fence. It asked residents to write to their local councillors to express their support for the removal of the fence.
  4. In December 2017 the housing developer wrote to the Council regarding the fencing. It confirmed:
    • it had handed over management and maintenance responsibility for the public open space to Company C who receive a fee from residents to do so;
    • it was not involved in the decision to remove the fencing and when it was made aware it asked Company C to reinstate the fencing;
    • it considered Company C was not complying with the management plan requiring weekly inspections of the fencing and maintenance in accordance with the manufacturer’s specifications; and
    • it was in the process of transferring the land to Company C. If the transfer did not take place imminently it would consider replacing the fence and recovering its costs from Company C.
  5. The housing developer transferred the land to Company C on 22 June 2018. The Council issued a breach of condition notice to Company C on 26 July 2018. It said Company C was breaching two of the conditions attached to the planning permission and it was required to erect the fencing in accordance with the details shown on the approved plans, within 30 days.
  6. Company C complained to the Council about the misleading advice given in 2016 and requested the Council pay for replacing the fencing. The Council replied saying:
    • the planning permission required the fencing to be installed on site and for it to be retained and maintained;
    • Company C did not own the land in February 2016 and its email was very brief and generalised;
    • it could have given a fuller response explaining that in order to vary part of a planning permission and/or section 106 agreement, it is necessary to submit a formal application;
    • Company C was responsible for the maintenance and management of the play equipment and so it was responsible for the cost of replacement.
  7. Company C escalated the complaint to stage two of the Council’s procedure. The Council upheld its previous decision. It said Company C’s original email only referred to equipment, not fencing and that it is likely that changes to fencing would require a health and safety assessment. It also considered Company C as part of the land transfer process, should have taken legal advice on all the implications including its responsibilities in terms of the fencing. Finally it said that Company C, given its specialisation in ownership and management of public open spaces, should have been aware of the necessary steps to ensure its actions complied with the relevant legislation.
  8. Company C complained to the Ombudsman. It said it had replaced the fencing at a cost of over £10,000. The Council agreed its advice could have been fuller but considered the enquiry was inaccurate as Company C did not own the land, only referred to equipment not fencing and Company C should have been aware of its obligations as it was a specialist company.
  9. The Council also said it had introduced new procedures in 2018 to ensure planning history is properly checked and full information obtained before responding to all enquiries, no matter how general.

Analysis

  1. The Council should have asked for more information in respect of the initial query to establish the legal constraints on the site in terms of planning conditions and other agreements. It accepts it should have given a fuller answer and highlighted the possible need for a formal application to vary the conditions or the agreement. The failure to do so was fault.
  2. However, I do not consider the fault caused any injustice to Company C. It is a specialist company which takes over ownership, management and maintenance of public open spaces from housing developers. It should be aware of its responsibilities in terms of planning conditions and section 106 agreements or be able to obtain legal advice in areas of uncertainty. I do not consider it was reasonable for it to rely on the two-line reply from the Council as ‘permission’ to remove the fencing. At that point Company C did not own the land so responsibility for the consequences of removal of the fencing would lie with the housing developer. Company C, in its enquiry, did not mention fencing, only equipment which did not obviously encompass the boundaries of the site. Furthermore, the Council’s reply provided the caveat that removal of the equipment would be fine ‘if it is owned and managed by you’. At that point Company C did not own the site.
  3. I have also considered the point that Company C was responsible for managing and maintaining the fencing. By letting the fencing fall into such disrepair that it needed removing, it appears it was not fulfilling its obligations in that regard. It has argued that the planning permission only required maintenance for five years. Company C should take legal advice on this point, but the only reference to five years in the planning permission is the minimum period required for maintenance. Company C should be aware of this if it produced the management plan for the site.
  4. I welcome the improvements to the Council’s procedures when responding to enquiries about planning matters.

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Final decision

  1. I have completed my investigation as I do not consider fault by the Council has caused injustice to Company C.

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Investigator's decision on behalf of the Ombudsman

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