Summary: We will not investigate this complaint about the Council’s failure to enforce planning conditions, the terms of a section 106 agreement and a failure to keep necessary documents. We have not seen enough evidence of fault in the Council’s actions to warrant our involvement. Also, the complainant was aware the Council did not hold the document he requested a few years ago. Therefore, this part of his complaint is made too late.

The complaint

1. Mr X complains the Council has failed to enforce planning conditions and the terms of a section 106 agreement.
2. He also says the Council is guilty of poor record keeping, errors in setting up the management company and failure to ensure transfer of restrictive covenants and land title.
3. Mr X wants the Council to force the management company to discharge its management obligations.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. The Information Commissioner's Office considers complaints about access to information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about access to information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner

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How I considered this complaint

8. I considered information provided by Mr X and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. The Council has considered Mr X’s complaints. It confirms the following:
• Planning permission for the development was granted more than 30 years ago and the s106 agreement is dated 1995. The relevant planning conditions complied with at the time.
• There are no breaches of planning conditions on driveways, parking areas and external structures.
• There are no planning conditions forbidding extra planting or retention of footpaths.
11. The Council also confirms the management company for the development is acceptable. Also, any concerns about covenants on the development are civil matters and not issues for the Council to resolve.
12. Mr X raises issues with the availability of Council documents. If the Council has refused to provide information with information which he believes he is entitled to receive, it is reasonable to expect him to raise such matters with the Information Commissioner’s Office which was set up to oversee public authority compliance with access to information.
13. Mr X says the Council is guilty of poor record keeping and has lost documents. However, he says he was aware of this ‘a few years ago’. The law says a complaint must be made to the Ombudsman within 12 months of the complainant becoming aware of the problem. As Mr X says he was aware the Council could not provide documents a few years ago, this part of his complaint is late and there is no reason why Mr X could not have complained about this much sooner.

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Final decision

14. We will not investigate Mr X’s complaint:
• we have seen insufficient evidence of fault in the Council’s actions
• it is reasonable to expect him to contact the ICO if the Council has refused to provide information which he believes he is entitled to receive; and
• it is too late to complain about poor record keeping.

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Investigator's decision on behalf of the Ombudsman