Summary: Mr X complains the Council has failed to ensure landscaping and maintenance of opens spaces have been carried out by the developers of the land. He says this has caused pathways to become overgrown and untidy. The Ombudsman finds fault with the Council as it did not consider taking enforcement action after the developer stopped communication. There is also fault with the Council’s complaint handling. The Council has agreed to remedy the injustice caused to Mr X.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council failed to ensure a developer carried out landscaping and maintenance of open spaces on the development where Mr X lives.

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What I have investigated

2. I have investigated the Council’s actions following Mr X’s complaint in February 2018 where he asks it to enforce the Section 106 agreement. I have outlined the parts which I have not consider in the final paragraph of this statement.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. As part of this investigation:
• I considered the complaint raised by Mr X.
• I discussed the complaint with Mr X over the telephone.
• I made enquiries to the Council and considered the information it provided in response.
• I sent a draft of this decision to Mr X and the Council and considered the comments received in response.

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What I found

Legislation

8. Planning obligations, also known as Section 106 agreements (based on that section of the Town and Country Planning Act 1990) are legal agreements between local authorities and developers. They can be attached to a planning permission to make acceptable development which would otherwise be unacceptable in planning terms.
9. A council may seek an injunction against the landowner for failing to comply with a Section 106 agreement. A council can also take direct action to carry out any operations itself and then recover its expenses. However, there is no obligation on a council to take action.

Council’s complaints procedure

10. At stage one a Senior Officer in the service being complained about handles the complaint. The Council aims to resolve the complaint within 10 calendar days.
11. Where a complainant is unhappy with the stage one response they can appeal at stage two.
12. At stage two a Group Manager normally reviews how the complaint was handled. A full response is provided to the complainant within 10 calendar days of the complaint being escalated. If the Council cannot provide a response within 10 calendar days it will tell the complainant when they can expect a full response.

What happened

13. The Council granted planning permission for a development of new homes in 2002. Attached to the planning permission was a Section 106 agreement between the Council and developer. The Section 106 agreement obligated the developer to maintain the landscaping of the site until this obligation transferred to the Council. The agreement also said the transfer could only take place if the Council was satisfied the developer had satisfactorily maintained the open spaces. The agreement specified the developer would pay the Council a commuted sum for future maintenance after the obligation to maintain the open spaces transferred to the Council.
14. Mr X moved into a property on the development. He said the developers did send someone to cut the grass and hedges, but this stopped in 2017. Mr X said he tried to contact the developers but could not get a satisfactory response.
15. Mr X complained to the Council in February 2018 as the developer had not the maintained the open spaces in the development. Mr X said the Council had not implemented the Section 106 agreement and as a result the public open spaces were overgrown, weed infested, unsightly, and not maintained. Mr X also said the Council did not get the commuted sum from the developer and failed to ensure the implementation of a planning condition calling for a boundary treatment to the development perimeter.
16. In March 2018, the Council told Mr X the land had not been transferred to the Council as the developer did not bring the land up to the required standard. The Council say without bringing it up to the required standard the land transfer and payment of the commuted sum to the Council will not happen. The Council told Mr X it has tried to contact the developer but not received a response. The Council said if the developer continues to be unresponsive or does not take any action in a reasonable timescale, it will write to the developer saying the Council considers it to be in breach of the Section 106 agreement.
17. The Council and the developer met to discuss the development. A site visit took place to discuss the areas in question which needed maintained. Mr X also attended the site visit. After the visit the Council sent the developer an annotated plan of the site.
18. In April 2018 Mr X told the Council he does not think the developer will carry out any maintenance. He asked the Council to carry out the works under the Section 106 agreement using its own funds and conclude the land transfer from the developer to the Council. The Council responded to Mr X saying it has no reason to believe the developer does not want to move forward. The Council also told Mr X it has treated his complaint as an investigation and would be considering it at stage two of its complaints procedure.
19. In May 2018 the developer sent its response to the Council about the annotated plans. The developer asked the Council to agree to meet at the development to discuss planning matters about the affected areas on the development.
20. In June 2018 the developer and Council met on site. They decided a survey, with a focus on boundaries, was required for the open spaces the developer wants to transfer to the Council. The Council agreed to fund half of the cost for the survey. The Council updated Mr X and told him the developer had a clearer idea of the open spaces in their ownership. The Council also said the developer is going to carry out a survey to move matters forward.
21. The Council contacted the developer in late June 2018 to ask it to pay the necessary costs to bring the site up to the standard before the transfer. The Council contacted the developer again in August 2018 as Mr X had raised concerns about clearing brambles on the site. The Council passed on Mr X’s concerns to the developer.
22. In September 2018 the Council asked the developer for an update on what works it was carrying out to the open spaces on the site. The Council reminded the developer before any transfer the sites must be in an acceptable condition.
23. At the end of September 2018 the developer sent the Council a quote for the survey for the open spaces on the site. The developer also confirmed it will look at the brambles Mr X reported. The Council confirmed it was happy with the quote and asked the developer to keep it updated with the survey and works to the brambles.
24. In December 2018 the developer contacted the Council to say it has no budget for the site but will be reviewing this in January 2019 to identify a way to move forward.
25. Mr X contacted the Council in early February 2019 to ask for an update. The Council responded to say it was working with the developer but was waiting to hear the result of a significant meeting which will influence how matters are taken forward.
26. The Council contacted the developer asking for an update several times. The developer responded and asked it to provide a schedule of works for the site so it can cost this. The Council told the developer it did not have a schedule of works, and the works were the responsibility of the developer. The Council said the developer had said what works it was going to carry out and before the obligation could be transferred the site had to be brought up to a satisfactory condition. The Council also asked the developer to update it on the survey it was due to carry out.
27. The Council contacted the developer again on 14 February 2019 as Mr X reported some brambles were cut back. The Council told the developer this has raised health and safety issues with a boundary with a car park on the other side of the brambles and the Council has commissioned someone to put up temporary fencing to make it safe.
28. Mr X contacted the Council a few days later to ask for an update. He said he did not have confidence in the developer and has not been given any information about timescales. The Council responded to Mr X and said the removal of brambles should enable the survey to take place, but the land remains the responsibility of the developer until the transfer takes place.
29. In April 2019 the Council contacted the developer for an update. The developer said it wants to complete the transfer soon and asked to meet with the Council to agree a schedule of works to bring the site up to standard.
30. The Council said it agreed to meet but the developer needed to clarify it would be providing the commuted sum for the on-going maintenance of the site.
31. In May 2019 Mr X contacted the Council to say the issue is still not resolved and he wants to raise this with a higher authority. He said he has not received any correspondence from the Council since the brambles were cut back. The Council told Mr X it was still pursuing the matter with the developer.
32. The Council attempted to contact the developer several times from May 2019 until the end of June 2019 but did not receive a response.
33. Mr X remained dissatisfied and contacted the Ombudsman. In response to my enquiries the Council said it was going to seek legal advice with a view to taking enforcement action against the developers. The Council also said it did consider carrying out the works itself and charging the developer for the cost but decided not to pursue this option as it did not think the developer would pay the costs of the works back.

Analysis

34. When Mr X complained to the Council in February 2018, the Council told him it was considering taking further action against the developer if it kept failing to engage with the Council or failed to take any action within a reasonable timeframe.
35. After this the developer did engage with the Council and there is correspondence between the Council and developer about the site. I consider it appropriate the Council tried at this stage to work with the developer. However, in early 2019 the developer stopped responding and from the evidence provided, nothing further happened about maintaining the site.
36. From March 2018 until early 2019, when the developer stopped engaging with the Council, I cannot see that much progress was made. From the evidence, some site visits were carried out and the Council and developer managed to establish which open spaces the developer was responsible for. However, nothing further happened about the developer carrying out works to bring the open spaces up to the required standard and I cannot see the Council received confirmation the developer would pay the commuted sum.
37. After the developer stopped engaging with the Council in early 2019 I would have expected the Council to decide whether it could take further action against the developer to enforce the Section 106 agreement. From the evidence provided I cannot see the Council pursued the matter further or considered taking enforcement action against the developer. It was not until early 2020 the Council confirmed it had passed the case to its legal team to consider. I therefore consider the Council was at fault for the delay in deciding whether to pursue further action against the developer.
38. The fact the Council did not consider whether to take further action against the developer has caused Mr X injustice. The open spaces on the site where he lives remain untidy and in poor condition. Mr X also remained uncertain about whether the open spaces would be tidied up.
39. Mr X said he wanted the Council to carry out the works and use its contingency fund to pay for this. The Council said it considered carrying out the works and charging the developer but thought it unlikely the developer would refund the costs so decided against this. I have not found fault with the Council’s decision not to carry out the works and pursue the developer for costs or use its contingency. From the evidence, the Council is not responsible for the works nor is it obligated to carry out the works should it decide not to.
40. I have found fault in the way the Council handled Mr X’s complaint. While I accept the Council initially explained to Mr X it was considering his complaint at stage two given the history and complexity, it did not provide Mr X with a formal response at stage two. Nor did the Council advise him how he could pursue his complaint further should he be dissatisfied. As a result in the year following Mr X’s complaint he contacts the Council many times asking for updates.
41. While I accept the Council wanted to try to work with the developer and update Mr X, it could have provided Mr X with a formal response to his complaint outlining what it intended to do and provided him with timescales. It could also have advised Mr X how to pursue his complaint further should he be dissatisfied with the steps the Council intended to take. This would have given Mr X some clarity on the complaint and allowed him to pursue the matter further at a much earlier stage.

Agreed action

42. Within one month of my final decision the Council has agreed to carry out the following and provide evidence to the ombudsman it has done so:
• Apologise to Mr X for the faults identified.
• Consider whether to take enforcement action and write to Mr X to confirm the decision. The Council should provide Mr X with a timeframe for the next steps, including any legal action.
• Pay Mr X £200 for time and trouble in pursuing his complaint.
43. Should the Council not follow up on its actions after writing to Mr X stating what it intends to do about the developers non-compliance with the section 106 agreement, Mr X can complain to the Ombudsman.

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Final decision

44. I have completed my investigation and found fault by the Council which caused injustice to Mr X. The Council has agreed to the above actions to remedy the injustice caused.

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Parts of the complaint that I did not investigate

45. I did not investigate issues which occurred prior to 2018 given the length of time which has elapsed.

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Investigator's decision on behalf of the Ombudsman