Summary: Mrs X complained the Council failed to enforce a section 106 agreement to provide community facilities. We found no fault in the Council’s actions.

The complaint

1. Mrs X complained the Council failed to enforce a section 106 agreement to provide community facilities in her local area. Mrs X told us she has been misled by the Council, and the lack of community space is impacting her mental health and daily living. Mrs X also told us she has experienced unfair treatment as other local developments had community infrastructure delivered on time. Mrs X would like the Council to apologise and provide immediate access to a suitable community facility.

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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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

5. Parts of Mrs X’s complaint relate to issues which occurred between 2014 and 2022. This includes the quality of the initial section 106 agreement which was agreed in 2014 and the Council’s decision to move the proposed site of the community centre in 2022. The law says we cannot investigate late complaints unless we decide there are good reasons. I have seen no good reason Mrs X could not have complained to us about these matters sooner, so I have not investigated these parts of Mrs X’s complaint.
6. My investigation looks at the Council’s consideration of enforcement action once the section 106 trigger was reached in October 2023.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Section 106 agreements

9. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal 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 form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.

Enforcement

10. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
11. 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.
12. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
13. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60)

What happened

14. In 2014, as part of the planning permission for a housing development, the Council approved a section 106 agreement which said both a funding contribution for a community centre should be paid, and land for the centre should be transferred to the Council prior to 500 occupations at the development.
15. The 500th occupation trigger was reached in October 2023. In accordance with the section 106 agreement, the funding contribution should have been paid and the land for the community centre should have been transferred to the Council prior to October 2023.
16. Once the 500 occupation trigger was reached, the Council opened an enforcement case to investigate the potential breach of the section 106 agreement.
17. In January 2024 a delegated officer issued a report which explained the Council’s legal team were negotiating the section 106 agreement. The report explained the Council was aware the 500th occupation trigger had been reached. The negotiations between the Council and the managers of the community centre project were considered the best way to reach a decision on the location, specifications and timescale for the community centre. The officer recommended the enforcement case be closed and held in abeyance whilst negotiations progressed.
18. In October 2024 Mrs X submitted a complaint to the Council about its failure to enforce the section 106 agreement.
19. The Council responded to Mrs X’s complaint at the beginning of December 2024. In its response, the Council explained the issues raised in Mrs X’s complaint had been discussed with senior managers and the planning enforcement investigation had been reopened. The Council explained to Mrs X that it has discretion to take formal enforcement action and it would only do so when it was in the public interest and necessary to do so. The Council told Mrs X it had further meetings planned to progress the matter, and it would keep her complaint open until it could provide a further response.
20. In response to our enquiries the Council told us the community centre contribution was received in March 2025. This discharged the financial part of the section 106 obligation.
21. The Council also told us the land transfer has not yet taken place, however it remains in communication with stakeholders, and an agreement has been reached in principle. The Council’s enforcement case remains open and held in abeyance. This will allow the Council to reconsider the need for enforcement action if circumstances change.

My findings

22. The Council was quick to investigate the potential breach of the section 106 agreement once the 500th occupation trigger was met. The Council has provided evidence it considered the breach and whether to progress with enforcement action. There is no evidence of fault in the steps taken by the Council in reaching its decision to progress with negotiations rather than enforcement action, therefore I cannot question the outcome.

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Decision

23. I find fault no fault.

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Investigator's decision on behalf of the Ombudsman