Summary: Ms B complains the Council failed to ensure developers complied with a legal agreement to provide play areas for the housing estate where she lives with her young children. The Ombudsman finds there was no fault in failing to enforce the agreement. However, there were delays and communication failings by the Council and these caused injustice for Ms B. To remedy this the Council has agreed to make a payment to Ms B and to keep her updated with progress of this matter.

The complaint

1. The complainant, whom I shall call Ms B, complains the Council has failed to ensure compliance with a S106 planning agreement associated with planning permission for the housing development where she bought a family home, and has failed to keep promises to keep her updated about this matter.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I considered all the information provided by Ms B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
5. I considered the Ombudsman's guidance on remedies.
6. I provided Ms B and the Council with a draft of this decision and gave them an opportunity to comment. I considered all comments received in response.

Back to top

What I found

Background – the S106 agreement

7. In 2007 the Council issued outline planning permission for a large housing development.
8. To make the development acceptable in planning terms, a planning obligation under Section 106 of the Town and Country Planning Act 1990 (as amended), commonly known as a S106 agreement, was drawn up. It required the provision of four play areas.
9. In September 2017 Ms B bought a home on the development. She has three young children and was therefore concerned about the provision of play areas with play equipment. These were to be provided in phases with the first being completed prior to occupation of the fiftieth home. When two hundred homes were occupied, all four play areas should have been complete. However, the terms of the S106 agreement were not complied with and despite more than 200 homes being occupied no play area has yet been provided.
10. If a S106 agreement is not complied with, it is enforceable against the person that entered into the obligation and any subsequent owner. In case of a breach of the obligation the authority can take legal action and recover expenses.

Ms B contacts the Council

11. In November 2018 Ms B contacted the Council. She reported that she had been communicating with the Council since February 2018 and had more recently raised the matter of the S106 agreement and had been told that matter had been passed to the Area Planning Manager on 5 October. However, she had received no response despite requests for an update about the apparent breach of the agreement.
12. The Council acknowledged receipt of Ms B’s communication and initially promised response by 21 December, later amended to 18 December when Ms B pointed out the timescale proposed was not correct. On that date Ms B sought an update and the Council replied the next day. It apologised for the lack of update and said there had been a meeting with one of the site developers the previous week and an assurance had been given that the two developers now responsible for the site were now moving towards an agreed point of provision and their relevant contributions, where previously there had been an impasse. The Council said it would seek confirmation early in the new year of the latest position and a timescale for implementation. The Council told Ms B it would seek to enforce the terms of the S106 agreement if it was not resolved very quickly and said it would contact Ms B again very soon after the Christmas break.
13. The Council did not contact Ms B again until 1 April 2019 when it issued the response to her complaint. It reiterated the apology previously given. It did not provide an update on the issue of the S106 agreement but said the Area Planning Manager would be asked to provide this.
14. By 3 May Ms B had not received the promised update and chased the Council for this. She was then advised that the Area Planning Manager was in discussion with the developers, and on 10 May that officer sent Ms B an email apologising for the lack of progress on pursuing this matter and accepting responsibility for this. He said that there had been no progress since that previously reported, with the two developers working towards agreement over a variation to the S106 agreement. A meeting with representatives from one of the developers was planned for the following week and the Council said if no satisfactory assurances were received and acted on the Council’s solicitors would be instructed to commence legal action to enforce the terms of the original S106. It explained that this process would take some time but accepted the matter could not be allowed to drift further.
15. After the meeting the Council contacted Ms B advising it had been assured the developers were ‘very close to a full agreement’ on their respective responsibilities in respect of the public spaces and it had seen emails confirming this. The Council said this was being led by the original owner of the site, which had written to the Council confirming how matter is to be progressed. A month later, with further chasing by Ms B in the interim, the Council sent a further email to her after another meeting with the developer. The Council referred to liaison with a representative for the original owner of the site, with whom the S106 agreement had been made. That owner and developer had been instructed to progress variation of the agreement and they proposed a round-table meeting for all relevant parties to seek to progress the matter.
16. The proposed meeting was scheduled for 30 July and on 16 July the Council updated Ms B about this, saying that the purpose the meeting was to establish the responsibilities of the parties involved and the relevant timescales. It said if no agreement on a way forward could be reached then it would need to consider legal action against the relevant parties. After the meeting, on 1 August, the Council advised Ms B that at the meeting the responsibilities of each party had been clearly established together with agreement to ensure they were provided quickly. It said it had been provided with a variation to the S106 Agreement which was required and would now consider this immediately to ensure there was no further reason for delay. A further update by 15 August was promised.
17. Around this same time, the original owner / developer of the site went into administration. However, the remaining developers confirmed their intention to finish the open space and play areas as soon as possible and the Council advised residents that provided these developers agreed among themselves about what they proposed, there was no reason they could not proceed with variation of the S106 agreement. The Council said it would endeavour to ensure there was no delay on its part.
18. Liaison between the developers took place and a draft deed of variation for the S106 agreement was received by the Council on 25 September. This proposed combining the four play areas into one single larger area. But this was not progressed due to disagreement between the developers as to their respective responsibilities, and the Council has confirmed it has not received a formal request to vary the terms of the S106 agreement.
19. There was a further exchange of correspondence between Ms B and the Council in October 2019, and at the end of October the developers asked for a meeting with the Council to discuss a way forward. At the time of responding to my enquiries on this complaint, this meeting had not taken place. The Council says it is prepared to support an amendment which ensures proper open space provision and equipment and will do so once there is a positive proposal from the remaining developers. However, there is no specific timetable for this. The Council considers it would be extremely difficult to enforce the original S106 agreement given the circumstances in this case.

Analysis

20. As set out above, failure to comply with a S106 agreement may result in legal action. Legal proceedings in respect of compliance with an agreement are complicated when a contracting party has gone out of business, as is the case here. But in any event the Council is not obliged to take legal action, and before doing so it may decide to negotiate with developers about delivering what is in the agreement or agree to an amendment (for example, this could be fewer play areas). The Council’s failure to move to legal proceedings is not fault, although there were some delays or periods of inactivity, as the facts set out above show, when the Council could have done more to try to progress the matter, and it is possible more progress might have been made towards resolution if delays had not occurred, even in the particular circumstances which arose in this case. But while the lack of substantive action is frustrating for Ms B and her family, I cannot conclude that if the Council acted sooner to seek compliance with the agreement the family would have had the benefit of the play areas described, because an amendment could be sought by the developer, for example resulting in a smaller number of play areas or a reduction in the required play equipment.
21. There were however failings by the Council in its communications with Ms B which caused her injustice. The Council’s assurances in December 2018 that it would seek to enforce the terms of the S106 agreement if it were not resolved very quickly led to raised expectations for Ms B, and the lack of information about what was happening led to frustration and uncertainty about whether matters were being progressed at all. Ms B was put to unnecessary time and trouble chasing the Council for updates and pursuing her complaint about the matter.

Agreed action

22. In recognition of the injustice described above, I recommended that the Council:

• Pay Ms B £150 within four weeks of the decision on this complaint;
• Provide Ms B with an update on progress of this matter at six-weekly intervals.

23. The Council has agreed to my recommendations.

Back to top

Final decision

24. I have completed my investigation on the basis set out above.

Back to top

Investigator's decision on behalf of the Ombudsman