Summary: Mr X complained the Council failed to determine an application to vary his section 106 planning agreement and that this has caused him significant losses. We ended our investigation because it is unlikely to result in a meaningful outcome.

The complaint

1. Mr X complained the Council has failed to determine his planning application to vary a section 106 planning agreement.
2. Mr X said that as a result of the Council’s delay, he was caused significant financial losses.

Back to top

The Ombudsman’s role and powers

3. We may investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. (Local Government Act 1974, section 34(3), as amended)
4. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

Back to top

How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning 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. They are a form of a deed, which is a type of contract that may legally require agreements or unilateral undertakings (i.e an obligation on one party). The agreements ‘run with the land’, which means they may apply to subsequent landowners/developers, not just the original signatory.
12. A 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the date of the agreement.
13. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

14. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Background

15. Mr X is a property developer. He bought land that received planning permission in 2018. The planning approval is subject to a section 106 agreement, requiring:
• provision of affordable housing;
• a payment towards education in the area;
• land for public transport infrastructure.
16. Mr X submitted an application to vary the section 106 agreement in early 2021, but the Council has not yet made its decision.
17. Mr X said that the Council’s delays have caused him to shut down development on the site and lay off staff. He said the Council’s actions have caused him ‘massive financial loss’. Mr X would like the Council to:
• remove a planning officer from the case. Mr X said he received an abusive and threatening call outside office hours from a private, withheld number, but he believes this was from the case officer;
• offer a reasonable solution to the impasse; and
• allow him to finish his development and pay sums agreed under the section 106 agreement.
18. The Council’s version of events was different. It said:
• It has consistently advised Mr X that the impact of the development must be mitigated by complying with the terms of the section 106 agreement.
• It has not caused delay. Its records show correspondence discussions about options, including an application to vary the section 106 agreement and/or an application to vary the original approval.
• There is not yet a right to vary the section 106 agreement, because the five year limit has not passed. However, it said it may be prepared to vary the agreement if a satisfactory agreement can be reached. It said it sent a draft deed of variation to Mr X’s solicitors, but the parties were unable to reach an agreement. It said, this is reason the application to vary the original section 106 agreement has not been determined.
• It considers Mr X to be in breach of the section 106 agreement, because the number of houses built and occupied exceed the limits set in the agreement’s terms. It is preparing to take action in the high court to enforce the agreement and has sent a ‘pre-action’ letter to Mr X stating its case and setting a time limit for a response. The Council is expecting a response from Mr X or his solicitor within the next few weeks.
• The Council has investigated the allegations against the officer and found no evidence of misconduct.

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
23. I should not investigate this complaint further, and my reasons are as follows:
• Mr X has submitted an application to vary the section 106 agreement, but the Council has not determined it. As the five year time limit has not passed, there is no right of appeal for ‘non-determination’ of the application to the Planning Inspectorate. We are not an alternative resolution mechanism for parties to section 106 agreements.
• Though Mr X has no right yet to apply for the section 106 agreement to be varied, the Council may agree to do so, at its discretion. Mr X believes the Council is acting unfairly, but I have no power to direct the Council on how it should exercise its judgement. Until the five year time limit has passed, Mr X has no right to challenge the judgements the Council is making on his current proposal.
• Mr X said he has suffered significant financial losses, but we are not a court and cannot determine whether the Council has acted lawfully or whether it should be held responsible for the large sums Mr X claims.
• Mr X has asked for individual officers to be removed from involvement in his case, because he believes they made an abusive and threatening telephone call to him. Mr X did not provide us with evidence to support this allegation. The Council said it has also investigated this allegation and found no evidence of misconduct.
• Section 106 agreements are enforceable in the high court and the Council has indicated it intends to take enforcement action against Mr X. The high court is the appropriate body to determine whether Mr X is in breach of the agreement.

Back to top

Final decision

24. I ended my involvement as further investigation is unlikely to result in a meaningful outcome.

Back to top

Investigator's decision on behalf of the Ombudsman