Summary: Mr and Mrs X complain about matters relating to the implementation of a planning permission and their restrictive covenant. We will not investigate the complaint because an investigation is unlikely to lead to the outcome the complainants seek.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, complain about the Council’s failure to resolve an issue concerning a breach of their restrictive covenant by a developer implementing a planning permission. They want it to take action to resolve the matter.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered the information provided by the complainants and the Council.
4. I considered the Ombudsman’s Assessment Code.
5. I gave the complainants the opportunity to comment on my draft decision and considered what they said.

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My assessment

6. Seeking resolution to an issue concerning the implementation of a planning permission for a development on land over which they have a restrictive covenant, Mr and Mrs X contacted the Council. They said their restrictive covenant formed part of the section 106 Agreement which formed part of the planning permission and that as the developers were breaching the covenant the Council should take action to address the issue.
7. The Council advised Mr and Mrs X that it was for the developer to ensure they had all the necessary consents, approvals and legal rights to implement the permission. It said these matters, including restrictive covenants, were not for the Council and were private law issues. Its legal team considered the complainants’ suggestion that the Council take action under the Housing and Planning Act 2016 but it said it would not be appropriate for it to do so. Instead, it advised Mr and Mrs X to take up their concerns with the developer with whom they had a legal agreement for the purchase of their land and its subsequent development.
8. While I understand this response is disappointing for Mr and Mrs X, it is not our role to review the merits of it and I do not consider an investigation by the Ombudsman would be likely to lead to the outcome they seek.
9. In responding to my draft decision Mr and Mrs X say that by not taking enforcement action against the developer the Council has given the developer an unfair advantage. However, they have acknowledged it is for the Council to decide whether it is expedient to take enforcement action and in this case it has decided it will not. This is not evidence of fault and it is open to the complainants to protect their property rights against the developer by means of civil action.

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Final decision

10. We will not investigate this complaint. This is because an investigation is unlikely to lead to the outcome the complainants seek.

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Investigator's decision on behalf of the Ombudsman