Summary: There was no fault in how the Council handled a section 106 agreement for new housing development where Mr B lives.

The complaint

1. The complainant, who I will refer to as Mr B, complains about the Council’s handling of a section 106 agreement which was agreed during the planning process for the housing development where he lives. Mr B says although the agreement was made in 2013, residents only became aware of it by chance in late 2018.
2. Mr B says:
• The Council did not provide residents (who bought properties on the development) with copies of the agreement;
• The Council failed to monitor the developer’s compliance with the agreement;
• The Council did not set up a local liaison committee with residents which was required by the agreement; and,
• The Council did not put in place the travel plan required by the agreement.
3. Mr B says residents have suffered noise and disturbance because the developer has not complied with several of the requirements of the agreement. Mr B says this would not have happened if the Council had told residents about the agreement. Mr B would like the Council to change its procedures to ensure all legal agreements are monitored. Mr B would also like the Council to make a financial payment to residents.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
5. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I have considered Mr B’s complaint to us. I have considered the complaint documents and the section 106 agreement, which the Council has provided. I have also considered planning documents for the housing development which are available on the Council website. Mr B and the Council have also been given the opportunity to comment on a draft of this statement and their responses have been considered too.

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What I found

Legal background – Planning

8. Planning permission is required for the development of land (including its material change of use).
9. Planning permission may be granted subject to conditions relating to the development and use of land.
10. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms. Planning obligations under Section 106 of the Town and Country Planning Act 1990 (as amended), known as section 106 agreements, are a way to make a development acceptable in planning terms.
11. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.

What happened

12. In 2013 the Council granted planning permission for a new housing development. As part of the planning process, the Council entered into a section 106 agreement with the developer and the county council. I will call this ‘the Agreement’. The Agreement set out various actions each of the parties were required to take. This included a requirement for the developer to write a travel plan.
13. The Agreement included a draft version of the Council’s decision notice on the planning application. This states the conditions of planning permission. One of the conditions required the developer to produce a construction management plan for the development that needed to be approved by the Council and followed by the developer. This was to limit the impact of the building works, such as dust, noise and working hours, on the immediate area.
14. Another condition required the developer to put in details of a scheme for the creation of a local liaison committee, which would involve residents, for the duration of the construction period to be submitted and approved by the Council.
15. Mr B later bought one of the properties on the housing development and moved in. During this period the developer was still working on completing the development.
16. In late 2018 another resident found out about the Agreement after contacting the Council about mud being left on the road by the developer. Mr B says this was the first time residents became aware of the existence of the Agreement.
17. Mr B read the Agreement and considered the Council had not done what it agreed to do in the Agreement to help protect residents during the completion of the housing development. Mr B complained to the Council.
18. The Council considered the complaint under its complaints procedure. The Council did not accept it was at fault for the matters Mr B complained about. The Council said:
• The planning investigation team had an open complaint about mud on the road which was being followed up with the developer.
• It had now sent Mr B the construction management plan, required by a condition on the planning permission, which the Council approved.
• Other than the complaint about mud, it did not have any ongoing complaints about matters such as hours of work, dust or noise. It was willing to investigate if Mr B provided instances of matters contrary to the construction management plan.
• It had received all the financial contributions stated in the Agreement.
• It was not responsible for alerting new residents to planning decisions or legal agreements. This should have been done by the conveyancing solicitor.
• The developer set up a residents’ liaison group as required by one of the conditions of planning permission. This was later wound down when the development entered the final stage. Mr B could liaise with residents and the developer to see if the group could be reinstated, but this is not something the Council would be pressing for.
• The Agreement required the developer to write a travel plan, not the district council.
• It is satisfied it had done everything it should have done under the Agreement.
19. Mr B was not satisfied with the Council’s response to his complaint, so complained to the Ombudsman.

Analysis

20. The Council was not required to provide copies of the planning decision notice or the Agreement to Mr B or other purchasers of properties on the housing development. It was Mr B’s responsibility as the purchaser of a property to undertake reasonable checks about the property and the development, including viewing planning and legal documents, before buying the property. Mr B only found out about the requirements of planning permission and the Agreement recently. But, this was not the result of fault by the Council.
21. Mr B says the Council has not monitored the developer’s compliance with the Agreement and the Council has not done what it was required to do. There is a difference between what is stated in the Agreement and the planning conditions imposed by the Council as part of the grant of planning permission. Many of the issues Mr B has complained about were conditions of planning permission, and not requirements of the Agreement. However, because a draft version of the planning decision notice was included in the Agreement, I can understand why Mr B thought these were requirements of the Agreement.
22. The Council included a planning condition requiring the applicant to submit a construction management plan to be approved by the Council. The Council approved the plan put in by the developer. Mr B complains the Council did not monitor the site to make sure the developer complied with the construction management plan. But, local planning authorities have limited resources and planning enforcement is largely a reactive process where breaches of planning control are reported to the authority to investigate. The Council was not required to monitor the site to ensure the construction management plan was being complied with.
23. As the Council says, it is open to Mr B to contact the Council if he considered the plan was not being followed. But, apart from an issue regarding mud on the road, the information did not suggest Mr B or other residents had reported issues to the Council about non-compliance with the construction management plan. However, in responding a draft of this statement, Mr B provided an email reporting a breach of site working hours. Mr B’s email is dated about three weeks after the Council invited him to give details of problems and about a month before his formal complaint to the Council. The planning permission included a condition about working hours and further emails sent by Mr B suggest the Council investigated the matter. This was a proportionate and reasonable response by the Council. I therefore do not find evidence here of fault by the Council.
24. The Council also imposed a condition which required the developer to put in place a scheme for setting up a local liaison committee for the duration of the construction period, to be submitted and approved by the Council. The Council says the developer set up this group as required by the planning condition. Documents on the Council planning record support this. Mr B says the planning documents show the group last had a meeting in 2015 and was not wound down in the final stage of the development, as claimed by the Council.
25. I did not investigate this part of Mr B’s complaint further. It was for the Council to decide whether the requirements of this planning condition had been met by the developer. Also, Mr B should have been aware of the conditions of planning permission when he purchased his property. Mr B could have looked into this issue at the time and tried to reinstate the group if he considered the group was still needed.
26. The requirement in the Agreement for a travel plan was sought by county council not the Council. So, the county council was responsible for any non-compliance with those requirements and not the Council.

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Final decision

27. I completed my investigation finding the Council was not at fault for the matters complained about.

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Investigator's decision on behalf of the Ombudsman