Summary: We will not investigate Mr X’s complaint about the Authority’s refusal to set out financial tests it will use to assess prospective purchasers for his property. This is because Mr X agreed to the wording of the restriction requiring the Authority’s agreement and if he believes it should be changed he may apply to do so. The Authority has confirmed any prospective purchasers may contact it directly and this provides a suitable way forward.

The complaint

1. The complainant, Mr X, complains the Authority has failed to set out how it intends to assess prospective purchasers for his property against criteria set out in a Section 106 (planning obligation) agreement.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met.
3. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code. I shared my draft decision with Mr X and took account of his comments.

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Background

5. Mr X lives in a property in Exmoor National Park. The property is subject to an agreement under Section 106 of the Town and Country Planning Act 1990 and this requires any person buying the property to meet certain criteria. These include that the purchaser must have a local connection and not be able to afford to buy or rent accommodation on the open market.
6. Mr X is looking to sell his property and asked the Authority how it would determine whether a prospective purchaser meets the criteria. The Authority has explained there are no clear tests and it will assess prospective purchasers on a case by case basis. Mr X believes this is too subjective and open to bias. He is also concerned the process is not transparent.

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My assessment

7. Mr X agreed to the terms of the Section 106 agreement and these have not changed. He has been through the purchase process with the Authority and has an indication of how it will assess other prospective purchasers.
8. Mr X wants the Authority to set out the criteria it will use but there is no requirement for it to do so. The agreement does not specify what tests the Authority will use and if he believes it should he may apply to vary it. Any refusal to vary the agreement would then carry a right of appeal to the Planning Inspectorate.
9. The Authority has confirmed to Mr X that any prospective purchasers may contact it to see if they meet the criteria and this provides a suitable way forward.

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Final decision

10. We will not investigate this complaint. The Authority has provided a suitable way forward for any prospective purchasers and if Mr X believes the agreement should be more prescriptive it would be reasonable for him to apply to vary it and appeal against any refusal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman