Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to enforce against a developer for some of the bollards installed on the estate where she lives. There is not enough evidence of fault by the Council in the way they made their decision to warrant our investigation. We also cannot achieve the outcome Mrs X seeks from her complaint.

The complaint

1. Mrs X bought a house on a new residential estate. Mrs X says the developer’s planning permission required them to install ‘emergency access bollards’ with removable locks to one of the access roads. The developer installed permanent bollards instead, one of which was then removed.
2. Mrs X complains the council has failed to enforce against the developer for installing permanent bollards instead of lockable emergency access ones.
3. Mrs X says due to her leasehold agreement for her property, she and the other new homeowners will be responsible for maintenance and insurance of the area. She says the current situation could:
• cause homeowners legal expenses for claims made if emergency access is not permitted;
• result in a failure to save lives if emergency access is needed and is not possible.
4. Mrs X says the developer has not provided the bollards the new owners had expected when they bought their properties.
5. Mrs X wants the Council to be made to enforce against the developer to provide removable bollards, in line with the original plans.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
7. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. As part of my assessment I have:
• considered the complaint and the documents provided by Mrs X and the Council;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Mrs X to reply, and considered her response.

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What I found

9. In response to Mrs X’s report about the bollards, the Council said officers would be asking the developer to replace the fixed bollards with removable and lockable ones, because that is what the access plan indicated they would install. Officers raised the matter with the developer, but received no reply.
10. Where a council raises a potential planning breach with a developer but gets no response, they would then consider what further action they can take. They should consider whether they have grounds to use their enforcement powers to secure compliance with the relevant planning condition.
11. The Council determined the planning condition requiring the access road to be for emergency purposes only did not prevent installation of bollards, permanent or otherwise. There is no mention of bollards of any kind in the wording of the condition which requires the road to be for emergency access only. The condition was one of many attached to the outline planning permission for the development site. The application had been the subject of a formal public inquiry, issued by a planning inspector. The decision to grant the conditional permission was made by the relevant national government minister. The Council has decided it cannot take any formal action against the developer regarding the bollards because the condition as written by the inspector does not give it grounds to do so.
12. There is not enough evidence of fault by the Council here to justify our investigating. The Council sought informal compliance from the developer. When the developer did not reply, the Council considered what formal powers it should use. I have not seen enough fault in the way officers have reached their view that they should not use their discretionary enforcement powers here to warrant our further involvement.
13. We cannot say the Council was at fault for the wording of the relevant planning condition, because this was done by the planning inspector, not Council officers. We do not have jurisdiction to investigate the inspector, or the government minister who granted the permission for the entire development.
14. In reaching my decision not to investigate this complaint, I also take into account that we can achieve the outcome Mrs X seeks. Even if there were fault by the Council, we cannot order it to take enforcement action against the developer.
15. Mrs X has raised concerns about the terms of the lease for her property. But if she was not satisfied with the terms of the sale, or any ongoing costs or responsibilities which came with her purchase, she could have decided not to buy the house. If Mrs X considers the developer has not provided the estate as bought into by her and other new residents by not installing the right bollards, and she believes this results in her actual or possible exposure to risk or loss as a leaseholder, that would be a matter for her to take up with the developer. It would be an allegation of a breach of a private contract between Mrs X and the developer who sold her the property. Mrs X may wish to take independent legal advice before pursuing that route.

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Final decision

16. We will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council in how it made its planning enforcement decision to warrant our investigation;
• we cannot achieve the outcomes Mrs X seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman