Summary: Mr X complained the Council failed to take formal enforcement action against a developer who built his home. We did not investigate this complaint further as it was unlikely to result in a finding of fault or any other meaningful outcome.

The complaint

1. Mr X complained the Council failed to take planning enforcement action against a developer, for failing to maintain and carry out regular inspections for a structure near his home. Mr X also believes the Council was wrong to accept the developer’s proposed surveys and engineering solutions when it first allowed the structure to be used.
2. Mr X said that because of the Council’s failures, the structure now needs to be replaced and that cost could unfairly fall on residents, who have responsibility for maintenance of the structure through a residents’ management company (RMC).

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The Ombudsman’s role and powers

3. 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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X and a planning manager. I read the Council’s response to the complaint and considered documents from its planning files, including committee reports.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
12. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

14. Mr X lives on an estate where building began nearly two decades ago. One of the boundaries relies on a structure to ensure the land is safe and protected from the environment. The Council approved the planning application subject to a section 106 agreement which, amongst other things, required the owner and developer, to:
• submit a survey to the Council covering the existing structure to establish works for its replacement and/or repair and ensure it lasts at least 60 years from the date of the agreement;
• ensure that houses are not occupied until works identified by the survey have been carried out to the Council’s satisfaction;
• keep and maintain the structure in a good state of repair in accordance with the survey.
15. The Council said that a few years after approval of planning permission, its officer wrote to the developer to ask if the survey for the structure was complete. The developer submitted the survey, and the Council shared it with a government agency whose role includes oversight of this type of development/structure.
16. The Council said at the time occupation of estate houses began, there were no indications of problems with the structure or its maintenance. This did not happen until more recently when Mr X began complaining about the condition of the structure. When this happened, the Council sought and eventually received repair and maintenance proposals from the developer, which it shared with the government agency. The Council provided copies of emails from the government agency that show it was satisfied that:
• the designers and construction firm employed to carry out maintenance and repair works were reputable; and so
• works to the structure should be acceptable.
17. The Council decided that, given the government agency’s view that the maintenance works were likely to be acceptable, it could not justify taking further enforcement action against the developer. It acknowledged the section 106 agreement required the structure should last 60 years, but it decided it could not say that this was unlikely if the developer continued to maintain the structure in the way it had proposed.
18. Mr X and other residents became concerned about the condition of the structure after they became responsible for its maintenance through a residents’ management company (RMC). The RMC had its own survey completed which advised that the structure was in poor condition and needed replacement or costly maintenance work. Mr X argued that, as the structure should have been built to last several decades, it should not have needed significant works and possibly replacement after a relatively short time.
19. Mr X said the Council had failed to ensure the structure was built properly at the time it approved the original survey, and now responsibility had passed to the RMC, potentially leaving residents with large costs.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate this complaint and my reasons are as follows.
• The section 106 agreement places obligations on the developer and landowner and gives power to the Council to act, if it decides the obligations are not met and action is justified. When in recent years, Mr X complained about the condition of the structure, the Council eventually decided not to take enforcement action under the section 106 agreement.
• Before it made its decision, the Council considered what had happened, identified that the structure required maintenance, took advice on the issues from a government agency, and satisfied itself that no further action was necessary. I have seen no evidence to suggest that there is fault in the Council’s decision-making process here.
• Mr X believes the Council should have done more at the outset and that it was wrong to accept the developer’s original survey. These events happened long before our 12-month time limit, and indeed before Mr X moved to the estate. I think it is unlikely we could justify a detailed investigation of what happened so long ago. In any event, we are not an appeal body to the judgements officers make, and in the absence of fault in process, we cannot say what we would have decided. The decision on whether to accept the original survey was a matter for the Council to decide.
• Where we find fault causing injustice, our financial remedies are usually small sums, often token payments to recognise the impact the fault has caused. Mr X believes repairs to the structure could eventually cost several millions of pounds. We are not a court and cannot decide questions of legal liability and responsibility for such large sums.
• In response to an earlier draft of this decision, Mr X said residents were also caused injustice because the estate road had not been adopted by the Highway Authority. Although this issue is not directly relevant to the main complaint here (the structure near his home), I should note that it is not the Council’s responsibility to ensure roads are completed to an adoptable standard. That obligation would usually be on the developer, applicant or landowner.

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Final decision

25. I ended my investigation because further investigation was unlikely to result in a finding of fault or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman