Summary: Mr X complains about the Council’s handling of planning matters which have affected his late mother’s property. We will not investigate the complaint because part of the complaint is late and therefore falls outside our jurisdiction and there are insufficient grounds to warrant an investigation of ecology enforcement matters.

The complaint

1. The complainant, who I refer to as Mr X, complains about the Council’s handling of planning matters which have affected his late mother’s property. He says the Council failed to include her in the Section 106 agreement drawn up between the Council and developers building on a site adjacent to her property, has failed to ensure the correct visibility splays are in place and failed to enforce ecological conditions attached to the application.

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The Ombudsman’s role and powers

2. 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)
3. 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. (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 Council.
5. I considered the Ombudsman’s Assessment Code.
6. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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My assessment

7. On the death of his mother, Mr X took over a complaint that had been made in her name about planning matters relating to planning consent granted in 2017 for a housing development adjacent to her property.
8. He has complained about a significant amount of money he believes he/his mother lost because of Council decisions relating to visibility splays and their position in relation to his mother’s land and about the Council’s failure to include her in the original s106 agreement.
9. The Council has explained there was never any requirement for Mr X’s mother to be included in the s106 agreement. It says it is satisfied with what has been installed and it will not be taking any further action in relation to the splays.
10. The restriction highlighted at paragraph 2 applies to past events from 2017 and I see no grounds which warrant exercising discretion to investigate them now. Moreover, it is not our role to review the merits of the Council’s decision that the splays in place are acceptable, even if they do not match those on the original plans.
11. With regard to outstanding ecological matters, there has been delay by the Council for which it has apologised. However, it has recently carried out a site visit and noted some planting and the installation of a pond remain outstanding and its Enforcement Officer continues to follow up on this. It will then decide whether it is expedient to take enforcement action against this breach of condition.
12. Given the Council’s recent action, and that it is for the Council, and not the Ombudsman, to decide on the question of expediency, I do not consider an investigation by the Ombudsman would be likely to add significantly to the Council’s own investigation at this stage or lead to a different outcome so we will not investigate it.
13. In responding to my draft decision Mr X says the Council is wrong to say the verge over which the visibility splays pass is part of the highway when the Land Registry has confirmed it belongs to his late mother’s property and that therefore the splays are not secure. If Mr X believes ownership of the verge gives rise to rights he wishes to protect then it is open to him to take action through the civil courts. This is not a matter we could determine.
14. Mr X says that had the Council handled matters in an efficient and timely manner his late mother could have enforced the conditions attached to the planning permission, but enforcement matters are for councils to determine.

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Final decision

15. We will not investigate this complaint. This is because part of the complaint is late and therefore falls outside our jurisdiction and there are insufficient grounds to warrant an investigation of ecology enforcement matters.

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Investigator's decision on behalf of the Ombudsman