Summary: We will not investigate this complaint about the Council’s decision that a breach of a section 106 legal agreement has not occurred. We have not seen enough evidence of fault in the way the Council considered the matter.

The complaint

1. Mr X complains the Council has failed to properly consider a section 106 planning agreement for the membership fees that can be charged for use of a fitness centre. He also complains the Council failed to take enforcement action against a breach of the agreement.
2. He wants us to require the Council to:
• ensure the hotel sets its gym membership at no more than £80 per month
• review alleged maladministration in the planning department; and
• compensate all complainants and former club members.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating.

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

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Ombudsman is not an appeal body, and it is not our role to decide whether there are breaches of planning control, nor whether the Council should take enforcement action against such breaches. We consider the way in which the Council made those decisions. If we do not identify fault in the way the decisions were made, we are unable to recommend any changes to them.
7. From the information I have seen, the Council sought advice from its legal team on the interpretation of a clause in the section 106 agreement which refers to the provision of a fitness centre and the fees charged for the same. It is not required to seek independent legal advice.
8. It is not for the Ombudsman to adjudicate on disputed points of law. The Council has explained how it has interpreted the clause in the agreement relating to the fitness centre membership fees. It is satisfied there is no breach of the agreement.

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Final decision

9. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council considered his report of a breach of a section 106 agreement.

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Investigator's decision on behalf of the Ombudsman