Summary: Mr X, on behalf of Old Oak Neighbourhood Forum (OONF), complained the Council did not formally adopt the scheme of delegation with the Old Oak and Park Royal Development Corporation (OPDC). He also complains the Council has spent section 106 monies generated by planning applications in the OPDC area in other areas of the Borough meaning much needed infrastructure improvements have not been delivered. The Council has now formally adopted the scheme of delegation and it would not be proportionate to now investigate any failure to do this in 2015. Any complaint about specific misuse of section 106 money should be made to the relevant planning authority in the first instance.

The complaint

1. Mr X, on behalf of Old Oak Neighbourhood Forum (OONF), complained the Council did not formally adopt the scheme of delegation with the Old Oak and Park Royal Development Corporation (OPDC). He also complains the Council has spent section 106 monies generated by planning applications in the OPDC area in other areas of the Borough.
2. Mr X says that much needed infrastructure within the OPDC area has not been delivered because the money has been allocated to non-OPDC parts of the Borough.

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The Ombudsman’s role and powers

3. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

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

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

5. Mr X is complaining on behalf of a neighbourhood forum (OONF) which he supports and advises. Mr X has knowledge of, and expertise in, planning matters. The OONF was formed in February 2018.
6. The Old Oak and Park Royal Development Corporation (OPDC) was formed in 2015 by the Mayor of London with the task of regenerating the area where HS2 meets Crossrail. It is a 650 hectare site which straddles three London Boroughs, one of which is Ealing. OPDC is the Local Planning Authority and regeneration agency. There is a scheme of delegation for planning matters that fall within the Ealing Borough section of the OPDC.
7. Mr X says that after research into a series of planning decisions, he complained to the Council in February 2020 as he did not believe the Council had ever formally adopted this scheme of delegation and he had concerns about how the scheme was being used. Mr X has particular concerns about the collection and retention of section 106 payments.
8. As a result of the concerns raised by Mr X to both the Council and OPDC, an amended scheme of delegation was considered by a full Council meeting in December 2020. The amendments to the scheme include reference to section 106 payments.

Analysis

9. A section 106 agreement is negotiated between a developer and planning authority and provides money to mitigate the impact of a development that might otherwise make it unacceptable in planning terms.
10. Mr X complained the scheme of delegation was not formally adopted in 2015 and that it did not make provision for how section 106 money has been spent. Mr X says the Council has collected section 106 money without having the power to do so and has then misallocated the funds by spending it on areas that are not within the OPDC area.
11. Mr X argues the Council does not have authority to collect and spend section 106 money associated with development in the OPDC area. While he argues there is no specific clause within the scheme of delegation between the Council and OPDC, he has not provided any evidence to show the Council cannot do this. In the absence of such evidence I am unable to say there is fault by the Council.
12. The OPDC is the planning authority and the Council is acting on its behalf when determining planning applications within the OPDC area. It therefore follows that it is the responsibility of the OPDC to decide how any section 106 money is collected and spent. It seems to me that if Mr X is concerned about how the money is being used then he should be complaining to the OPDC rather than the Council.
13. Mr X, on behalf of OONF, has the expectation that all money associated with section 106 money from developments within the OPDC area will be spent within that area. It is my understanding that any authority that receives a contribution from development through a section 106 agreement, must prepare an infrastructure funding statement at least annually. It seems to me that this would be a good starting point for Mr X to find out how section 106 money has been spent. If Mr X has specific concerns about section 106 money within the OONF, then he should raise this as a formal complaint to the relevant planning authority in the first instance.
14. As a scheme of delegation has now been formally accepted by the Council, I am not persuaded it would be proportionate to now consider this part of the complaint further. Regarding the use of section 106 money, Mr X would need to make a specific complaint about specific money and such a complaint should be made to the appropriate planning authority in the first instance.

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Final decision

15. I will now discontinue my investigation.

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Investigator's decision on behalf of the Ombudsman