Summary: We will not investigate this complaint about the Council’s actions in relation to affordable housing and a Section 106 agreement. Mrs X has submitted two planning applications related to this matter and has appeal rights. We would expect her to use these.

The complaint

1. Mrs X complained about how the Council interpretated an independent valuation of her property in relation to its affordable housing status. Mrs X also complained the Council did not use the Section 106 (S106) payments for public art within the housing development.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• it would be reasonable for the person to ask for a council review or appeal.

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

3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X’s complaint is about the Council’s valuation of her property being below market value. The Council says the planning condition related to the housing development where Mrs X’s house is located specifies that her property is a discounted market sale property. This is to ensure that affordable housing remains affordable in perpetuity.
8. Mrs X knew this as she submitted two planning application in 2020 and 2021 regarding this matter. One to lift the affordable housing tie and one to vary the S106 agreement. The Council refused both applications. Mrs X has appeal rights, and it is reasonable to expect her to use them. We therefore should not investigate this part of the complaint.
9. Mrs X’s complaint also relates to the Council’s spending of the S106 monies. The Council responded to Mrs X. It provided a breakdown of the projects the Council spent the money on. Although these are not within the specific housing development the S106 relates to, it is the wider area, and this is in line with S106 policy. We would not consider the matter related to the use of S106 money for public art as there is insufficient evidence of fault to justify our involvement.

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Final decision

10. We will not investigate Mrs X’s complaint because she could appeal to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman