Summary: X complained about the Council’s failure to take ownership of land used as a car park under the terms of a legal agreement. X also complained that the evidence they had provided to the Council about anti-social behaviour had not been presented to members of a committee tasked with considering this issue. We found fault in the way the Council has acted but found no evidence to show the fault caused an injustice to X or to others. We made a recommendation which might reduce the likelihood of the fault happening again, which the Council has agreed to carry out.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to require land was transferred to its ownership under the terms of a legal agreement. X said that, because of this, the Council did not own the land, it failed to control criminal behaviour taking place on it.
3. X also complained about the report prepared about this issue that had been presented to a committee of Council members. X said the report should have referred to evidence of anti-social behaviour X had provided, including photographs and crime reference numbers.
4. X would like the land to be secured to control access at night.

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The Ombudsman’s role and powers

5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. We have discretion on what we investigate. We may not start or continue an investigation into a complaint or part of a complaint if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• 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 the issue, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including details of a section 106 legal agreement.
9. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. 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. 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.
15. The parties to the agreement can seek to enforce its terms in the court.

What happened

16. X sold land which was used for development. During the planning process, it was decided a car park on the land should be built and then ownership of that land transferred to the Council for a small sum.
17. The Council drew up a section 106 agreement to ensure this happened. The agreement was signed by the parties, the Council, the developer, and X who owned the land at that time.
18. Later, when the car park was brought into use, X complained to the Council it was used at night by individuals for anti-social activities and who were likely to be committing crimes. X reported what had happened to the police and the Council. X sent photographs and crime numbers to the Council with their complaint.
19. Council officers prepared a report about what had happened for a committee of members to consider. The report said:
• the Council had not accepted the freehold from the developer, due to concerns over maintenance costs and future management obligations. The officers set out what the predicted ongoing costs would be to the Council over the next few decades;
• there was no provision in the section 106 agreement for the developer to pay a commuted sum for maintenance costs, which is common practice in this type of situation;
• over the last 18 months or so, the Council and police had received consistent complaints about anti-social behaviour on the site;
• some of the residents had been blocking access to the site with barriers;
• residents of some of the neighbouring properties near the site had said they had not experienced any anti-social behaviour issues over the last few years;
• it was the officers’ opinion that levels of anti-social behaviour on the site were relatively low compared to other parts within the Council’s area;
• the Council had no alternative than to accept the site under the terms of the section 106 agreement and accept ongoing costs;
• two residents had asked the Council to consider securing the site with a fence and a gate, to be locked in the evenings, etc, when the site was not in use;
• savings proposals that had already been agreed meant it would not be possible to fund the locking and unlocking of gates to the site.
20. X was dissatisfied with the officers’ report and the outcome of the committee meeting, and so X complained to the Council before bringing their complaint to the Ombudsman.
21. In its response to X’s complaint, the Council said:
• it had asked its officers to ensure a similar situation did not occur again on similar circumstances where it would become responsible for land;
• the car park had been constructed by the Council several years ago and was serving the purpose for which it was required;
• it had been attempting to negotiate a solution for ongoing maintenance costs with the developer, and these should be concluded soon;
• it accepted the time it had taken to resolve the land transfer issue was excessive;
• a Council member had raised issues raised by X and other residents with the committee;
• CCTV evidence had been considered and it had worked in consultation with the police; and
• if X remained concerned about what was happening on the site, they could report their concerns through the Council’s anti-social behaviour review process.
22. During my discussion with X, they suggested we might investigate separately their allegation about lack of evidence in the committee report. I will set out my decision on this and other parts of the complaint, below.

My findings

23. The Council accepts that the reason it has taken so long to decide to take ownership of the land under the terms of the section 106 agreement, was because it had failed to ensure the developer had made financial provision for the future maintenance and land management costs. The Council said it would have expected a section 106 to include this provision and it does not know why such a provision was not made. The Council now faces costs it might have avoided.
24. We would expect any authority who intended to take ownership of land in these circumstances to consider the ongoing cost implications of its decision. We would also expect there to be a record of how it reached its conclusions on the key issues, including the matter of ongoing costs.
25. I have seen no evidence to explain why the Council omitted to follow its normal practice or that it considered that practice and, with good reason, decided not to follow it.
26. In the absence of evidence, the most likely explanation of why there was no provision for ongoing costs is that this issue was overlooked. A failure to consider a material issue and keep evidence of consideration is fault.
27. Whenever we find fault, we must decide whether it caused a significant injustice to the complainant or the wider public. Even if we find no evidence of such injustice, we can make recommendations to avoid the fault recurring if it has the potential to cause injustice in future.
28. I find no evidence of fault causing injustice to X or any other individual, and my reasons are as follows:
• Even if the Council had acted more quickly and become the owner of the land much sooner, the anti-social behaviour X complains about may still have occurred. The Council does not fence and gate its car parks for financial reasons, so the outcome is likely to have been the same.
• The Council did consider X’s concerns about anti-social behaviour and while the officers’ report did not refer to the photographs or the crime reference numbers X had sent, there is enough information to show the committee members were aware in general terms what X’s concerns were. If the committee had wanted more information from officers, it could have requested it.
• Even if the committee had seen the photographs and the crime references, the outcome X wanted, the securing and gating of the site, was not a likely outcome, because the Council’s policy had changed as part of cost saving measures.
• If X or others have ongoing concerns about anti-social behaviour on the site, they can use the anti-social behaviour review process, which may trigger further action by the Council and other authorities.
29. The Council should, however, take steps to ensure the fault I found does not happen again. I asked the Council to review its policy, practice and procedure to ensure that the fault is unlikely to recur. The Council agreed to accept our recommendation.

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Agreed actions

30. To avoid recurrence of the fault I have found, the Council will review its policy, practice and procedure relevant to section 106 agreements and future cost implications. It will make any changes it finds necessary and ensure any officers who might be involved in the production of section 106 agreements are aware of the changes that are made.
31. The Council will complete the review and report the outcome to the Ombudsman within three months from the date of this decision.

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Final decision

32. I found fault relating to the Council’s handling of a section 106 agreement and made recommendations to reduce the likelihood the fault will recur. I have completed my investigation because the Council accepted my recommendation.

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Investigator's decision on behalf of the Ombudsman