Summary: Mr B complains the Council has not ensured community facilities and open spaces are properly provided on a newly built housing estate. He says this means residents are living on the estate without promised facilities and with the likelihood of high maintenance costs for the open spaces. The Ombudsman does not find fault in how the Council has managed the community centre. However, we find fault in how the Council considered Mr B’s concerns about the open spaces.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not ensured the developer of a new housing estate has kept to the terms of a planning agreement. He says the developer has not delivered a community centre or a care home, and has not completed parks and open spaces, within agreed timeframes. Mr B also says the parks and open spaces that do exist are not in line with approved plans and are of a poor quality of construction. Mr B says residents are likely to face high maintenance costs in the future, because of these deficiencies.

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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 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’. 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)
4. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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(i), as amended)

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How I considered this complaint

6. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments, before making a final decision.

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What I found

Law and Guidance

7. Local planning authorities must prepare a local plan which sets planning policies in a local authority area. Once adopted, local plans provide the framework for development in the local authority’s area.
8. Planning permission is required for the development of land. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.
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.
10. The Community Infrastructure Levy (“CIL”) is a surcharge that councils can impose on new development in their areas. The surcharge only applies if the Council has a CIL policy, with details and rates on how the charge will be applied. Most new development that creates additional floor space of 100 square metres or more is likely to be liable for a charge.

Background

11. The Council’s adopted local plan includes a section relating to the development of new 750 homes, in a new build housing development (“the Estate”). The local plan says the Estate will include, among other things:
• ‘Neighbourhood facilities, including a community hub to incorporate a one / one and a half form entry primary school, community hall, small scale retail provision;
• Provision for open space, sport and recreation facilities…;
12. In 2014 the Council granted outline planning permission to a property developer, for development of the Estate. The Council entered into a section 106 agreement with the developer. The agreement included several covenants between the developer, the Council and the local county council. I have set out an overview of each of the covenants below:
• Community facility – the developer must, before the occupation of the 100th dwelling, secure approval from the Council of a community facility scheme and consultation strategy. It would carry out the consultation strategy to get feedback from the community regarding the preferred purpose of the community facility. On completion of the consultation the developer must:
1. Pay the Council £250,000 towards the cost of the community facility, before occupation of the 250th dwelling, unless otherwise agreed in writing by the Council, or
2. Construct a community facility to this value and transfer that facility to the Council for a nominal fee, before occupation of the 250th dwelling
• Public open space – the developer must, before each phase of the development, submit and get approval for an open space scheme for that phase then implement the scheme. Prior to the occupation of 90% of the dwellings in each phase the developer must transfer the freehold interest of the open spaces to a management company. For a maximum period of 12 months after the transfer the developer must maintain the open spaces and replace any failed trees, shrubs, children’s play equipment or other items or planting. The developer must also provide a management scheme to the Council, which will set out details of the management company and how they will go about maintaining the open spaces.
• Care Home – the developer must, before occupation of the 150th dwelling, secure written approval from the Council of a care village scheme and implement the approved scheme.
13. In 2015 the Council approved a reserved matters application for the phase one of the Estate. The decision notice included a condition that ‘any tree, hedge or shrub planted as part of the approved landscape and planting scheme on the site, which dies or is lost through any cause during a period of five years… shall be replaced in the next planting season’.
14. The Council has provided correspondence between it and the developer in relation to consultation on the community centre over several years. The Council says it cannot confirm whether the developer’s submissions aligned with the occupation of the 100th dwelling, as required in the s106 agreement.
15. I can see the developer emailed the Council in 2017 with its ‘marketing strategy’. The emails appear to focus on marketing to a pub operator. At the time the Council said it was happy with the developer’s approach and approved the marketing strategy under the terms of the s106 agreement.
16. A later email between Council officers in October 2018, expresses concern about the marketing strategy. It says that marketing to an area to attract private investment is not a consultation and that the developer should have obtained feedback from the community, not an investor. It said any purchaser would not be party to the s106 agreement so would have no legal obligation to comply. It also raised concerns that, if the developer simply paid the £250,000, there was no one at the Council who could deliver on such a project.
17. I cannot see any other records of communication directly between the Council and developer. However, correspondence in 2019, suggests the developer then produced a separate consultation strategy for the community centre.
18. In January 2019, the developer invited comments from local organisations on the best use of the proposed community facility. The parish council and a local scout group responded and expressed interest in using the proposed community building. In May 2019, the parish council arranged an online consultation that gathered responses from local resident about their preferred use. The eventual report from this consultation is dated April 2021.
19. In March 2020 the Council agreed to a deed of variation with the developer for the s106 agreement. This changed the requirement of securing written approval for a care village scheme from before occupation of the ‘150th dwelling’, to ‘the 700th dwelling’. The Council says a planning agent for the care village developer submitted a written scheme in August 2021, which the Council agreed. It has since made a planning application that is ongoing. Therefore, the terms of the amended s106 agreement have been complied with in respect of the care village.
20. In September 2020, Mr B wrote to his local councillor about the lack of a community centre and the condition of the landscaping on the Estate. On the landscaping point, Mr B said none of the play areas were operational and large parts of the communal spaces were derelict.
21. The Council responded to Mr B in December 2020. It said it recognised there was a breach with regard to the community centre and was working with the developer to progress this. It also accepted that play areas had not been provided prior to the occupation of 90% of the houses in each phase, as required by the s106 agreement. It said the Council’s landscaping officer had recently visited and provided details to the developer of what was required to resolve this.
22. Mr B was not satisfied with the Council’s response so escalated his complaint to Stage 2 of the complaint procedure. The Council responded in July 2021. It said the parish council had agreed to take ownership of developing the community building and so would be best placed to provide further information on Mr B’s concern that the development was not yet built. It said it had asked its planning enforcement team and tree officer to visit the site no later than August 2021. The Council accepted it had not proactively ensured compliance with the s106 agreement, so partially upheld the complaint. It said it had recommended meetings take place between the Council, the county council, parish council and the developer to resolve the issues.
23. The planning enforcement team and tree officer visited the site in early September 2021. It found that most of the trees planted were struggling to survive. In October 2021, the Council wrote to the developer to say that the majority of trees planted were in a dire state and many had died due to lack of maintenance. It said all the failed planting would need to be removed and completely replanted.
24. The Council held a meeting on site with the developer in November 2021. It asked the developer to arrange an independent arboricultural survey and a remedial statement for how the developer would fix the problems and stop the same from happening in the future. The Council asked for the reports by December 2021. In February 2022, the Council had not yet received the reports and says its officers were chasing the developer for this.
25. The Council confirms the developer has opted to pay the £250,000 to the Council, rather than deliver a community centre itself. The Council says the developers are in the process of transferring the land for the community centre to the Council, following which it will make the payment. The Council accepts this was not progressed prior to the occupation of the 250th dwelling, as required by the s106 agreement. However, it says that its communication with the developer about the community centre, effectively agreed in writing that it did not need to complete this by the 250th dwelling.
26. The Council says it hoped the developer would deliver the community centre as it accepts the costs of delivery would exceed £250,000. However, the developer has complied with the s106 agreement so it cannot take any enforcement action. Instead, in February 2022, the Council agreed to allocate £600,000 from its CIL to the cost of a community centre, subject to the grant of planning permission within a reasonable timescale.
27. The Council says it has not committed to delivering a community centre itself. It says it has had discussions about the parish council doing so. It says that previously, the parish council indicated that it would deliver on the project, however, it accepts current councillors disagree with that. I cannot see any correspondence in the documents provided that show the parish council agreed to deliver the community centre. The Council says it still intends to provide a community facility but through a third party, ideally the parish council. It is continuing discussions with the parish council to try to progress this.

Findings

28. I have considered complaints from Mr B about the following issues, all relating to breaches of the terms of the s106 agreement:
• Failure to provide a community centre
• Timeliness and poor quality of parks and open spaces
• Failure to provide a care village

Community centre

29. The community centre formed part of the Council’s statement for the development in its adopted local plan. The wording of the s106 agreement suggests the Council’s intention was for a community centre to be moving ahead, with an agreed purpose by the occupation of the 250th dwelling. That did not happen. The 750 houses on the Estate are all but complete and occupied. However, as of yet, it has not been established who will lead on delivering the community centre and no application for planning permission has been made.
30. Mr B says the starting point for where things have gone wrong is the formation of the s106 agreement. It only required the developer to pay £250,000, which was never enough for a community centre. I note the Council accepts it would not be possible to deliver a community centre for this amount. It is not clear how the Council arrived at the figure of £250,000 when drafting the s106 agreement.
31. I also note the Council says it does not have anyone to deliver the project itself. There does not appear to have been a plan in place for what the Council would do if the developer opted to pay the money rather than build the community centre itself. The Council says it hoped the developer would deliver this as it knew it would cost more than £250,000. However, the developer was only obligated to build a centre to the same value. It seems unlikely a property developer would have voluntarily decided to build something significantly more expensive if it could instead pay the lesser amount. And if the developer built something to the £250,000 value, it is likely the centre would not be fit for its intended purpose.
32. However, there is no legislation or guidance that sets out any steps the Council must take to satisfy itself the terms of a s106 agreement are feasible. It is a contract between the Council and the developer, and it is for those parties to decide what terms to include. At the time of drafting the s106 agreement, the Council had not made any decision about the exact purpose of the centre or what it would look like. Part of the s106 agreement was to require a consultation to establish that. So, at the time of drafting, it may not have been clear how much a centre would cost. Whether £250,000 was sufficient for any likely version of the centre is a different question, and one I cannot make any findings on.
33. The Council has allocated extra funding for the community centre, so intends to ensure a centre does materialise. There is nothing in the s106 agreement that says when a community centre must be completed, or how the Council must progress this, after receiving the funds from the developer. Therefore, I cannot find any specific fault in the delay in completion of a centre. And again, I cannot find fault in how the Council drafted the terms of the s106 agreement, as it is for the parties to the contract to decide the terms.
34. Mr B says the Council did not properly monitor whether the developer had complied with the s106 agreement, or ensure it complied. Instead, he had to raise concerns with the Council, after the developer had already missed deadlines, leading to delay in the Council addressing the issues.
35. I can see the Council considered concerns about whether the developer had properly consulted on the community centre as early as October 2018. It raised these concerns with the developer, who then completed the consultation and decided to pay the fee. Therefore, I cannot find fault in the Council not monitoring compliance with the section of the s106 agreement relating to the community centre.
36. It is clear there were delays in completion of the consultation and payment of the fee. The options available to the Council were to, a) take formal enforcement action, or b) work with the developer informally to resolve any breaches of the agreement.
37. Enforcing against a breach of a s106 agreement is different to enforcing against a breach of planning conditions. The Council does not have specific enforcement powers in the same way it does for planning conditions. It is essentially a breach of contract, for which the Council can, if it decides necessary, take the developer to the county court. Often this involves councils seeking an injunction, to prevent any further work taking place, until the developer has complied with the terms of the s106 agreement. Mr B may consider the Council should have done this. However, it is entirely the Council’s decision, as to whether it will enforce the terms of agreement in this way. It is normal that councils will try to engage with developers first, to resolve any issues before taking enforcement action.
38. I cannot find the Council at fault for not taking formal enforcement action against the developer, as this was at the Council’s discretion. I also note the s106 agreement was worded ‘unless otherwise agreed in writing by the Council’. I accept that, on a practical level, the Council gave written consent to the developer to take longer to comply with the terms of the agreement, through its continued correspondence with the developer about this.
39. Mr B is also concerned about the location of the community centre. He says the community centre was meant to be a separate unit next to the shops and primary school. He says the Council has now allocated a small piece of land next to the shops, with the smallest amount of land given to the community centre. He is also concerned the Council may have to refuse planning permission for the centre due to its proximity to houses on site.
40. I can see the original design and access statement showed the location of a community hub, which would include the centre and shops, next to the school. It did not include a specific location for the centre. Even if it did, this could be superseded by any later approved planning applications. To date, there is no approved plan or design for the community centre. I cannot make any findings about the location, how large the centre should be or how much land should be allocated for its use. I also cannot say what the likelihood is of the Council approving any application. This all needs to be determined through the planning process. Mr B would need to raise any concerns he has about the details of the centre in his comments on any planning applications.
41. Given its inclusion in the local plan, and the terms of the s106 agreement, I understand why residents had an expectation that a community centre would be finished, or close to completion by this point in time. I also understand why Mr B questions the adequacy of the terms of the s106 agreement, and why he is concerned there is still no agreement about who will deliver community centre and how. However, for the reasons outlined above, there is no legal framework, or other basis on which I can find fault in how the Council decided the terms of the s106 agreement, or how has managed the matter since.

Parks and open spaces

42. I understand Mr B is concerned about following main issues with the open spaces:
• Delay in completing the open spaces
• Play equipment does not match the approved plans
• Most trees planted have died
• Building waste and rubble is coming through from under the grass
• Play equipment is of poor quality, moves around when used, and bolts and screws are coming loose and collapsing
43. The Council accepts the developer did not complete the parks and open spaces in line with the timescales set out in the s106 agreement. It also accepts it did not proactively monitor this and only investigated when residents raised concerns. I understand the open spaces have now opened, but residents are concerned that they are not completed to an acceptable standard.
44. The Council has investigated the issue of play equipment and found this does match approved plans. It has provided details of the planning application and approved plans it has checked the equipment against. On this basis, I do not find fault in how the Council investigated this issue.
45. The Council has investigated the issue with the trees and is pursuing the developer to replant all trees that have died and produce an arboricultrual assessment to ensure the same does not happen again. Therefore, I do not find fault in how the Council has responded to Mr B’s concerns about the trees. This matter is ongoing, and it is open to Mr B to make a further complaint in the future if the Council’s enforcement action does not resolve the issue.
46. From the information provided, I cannot see the Council has investigated Mr B’s concerns about building rubble and waste appearing through the turf, and the general state of the open spaces. Mr B’s initial complaint to the Council did not refer to building rubble specifically but he said the open spaces were ‘derelict’. The issue with play equipment falling apart is a new matter Mr B raised during the course of my investigation but feeds into the overall state of the parks and open spaces.
47. I cannot say whether the quality of workmanship in this regard would amount to a planning breach. That is something the Council would need to determine, based on the relevant approved plans, conditions, and obligations. However, I understand why Mr B is concerned both about residents’ enjoyment of the park and potentially costly future maintenance, the burden of which falls on residents.
48. I find fault on the basis the Council that I cannot see evidence the Council has investigated Mr B’s wider concerns about the state of the open areas. I recommend the Council investigate this matter further. The Council should consider whether there is any breach of planning conditions, terms the s106 agreement, or any diversion from the approved plans. If so, it should consider whether to take enforcement action to resolve these issues.

Care village

49. As with the community centre, the wording of the s106 suggests the Council intended for the care village to be agreed and moving forward by occupation of the 150th dwelling. This did not happen.
50. The Council varied the terms of the s106 agreement, and the terms have now been complied with. It was open to the Council to make this variation to its contract with the developer. I cannot find fault on that basis.
51. A planning application has been submitted for the care village, so this matter is ongoing.

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Agreed action

52. The Council has agreed to, within a month of this decision:
• Apologise to Mr B for not investigating his wider concerns about the state of the open spaces and parks
53. I also recommend that within two months of this decision, the Council:
• Investigate whether there is any breach of planning conditions, the approved plans or terms of the s106 agreement, in respect of the overall condition of the open spaces, including Mr B’s concerns about building waste and rubble, and poor-quality play equipment falling apart.

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Final decision

54. The Council is not at fault in how it managed the community centre. However, I find fault in how the Council considered Mr B’s concerns about the open spaces.

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Investigator's decision on behalf of the Ombudsman