Decision : Closed after initial enquiries
Decision date : 02 Sep 2014
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr and Mrs B’s complaint that the Council has delayed agreeing the terms of a section 106 agreement and has not issued a decision notice on their planning application. Mr and Mrs B can make an appeal to the Planning Inspector as the Council has not determined their application. It is reasonable to expect Mr and Mrs B to use their right of appeal because the Planning Inspector can review the information and issue a decision notice if they consider it appropriate.
- The complainants, whom I shall call Mr and Mrs B, say the Council has taken more than two years to finalise a section 106 agreement and this is delaying the grant of planning permission.
The Ombudsman’s role and powers
- The law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a government minister. However, she may decide to investigate if she considers it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
- 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.
How I considered this complaint
- I have considered the information Mr and Mrs B provided when they made their complaint. I sent a statement of my provisional views to Mr and Mrs B and invited comments.
What I found
- In November 2011, Mr and Mrs B applied for outline planning permission to build on land. “Outline” permission establishes the principles of whether development is permitted, with the details of the scheme provided later.
- The Council decided to approve Mr and Mrs B’s application in June 2011, subject to certain conditions being met and a section 106 agreement being approved that dealt with matters such as drainage and flood defences. A section 106 agreement details obligations a developer must meet as a condition of planning approval. They allow local authorities to negotiate contributions from developers to services and infrastructure.
- The section 106 agreement is still not finalised and it is over two years since the Council made this a condition of granting outline planning permission. The Council says the delay is because a third party is required to take action and this has slowed matters down. Mr and Mrs B cannot make any further progress with their intentions to develop the site until the Council has issued a decision notice confirming approval of the outline planning application.
- The Planning Inspector can consider appeals made where a local planning authority has failed to make a decision on a planning application within a set period of time. As the Council has not issued a decision notice, Mr and Mrs B have a right to make an appeal. It is reasonable to expect Mr and Mrs B to contact the Planning Inspector and use their right of appeal, because the Inspector is best placed to decide whether a decision notice should now be issued.
- If the Council has been unable to finalise the section 106 agreement because of complications arising from the actions of a third party, it is unlikely that even if the Ombudsman investigated Mr B and Mrs B’s complaint she would be able to find fault by the Council.
- The Ombudsman will not investigate Mr and Mrs B’s complaint because they can make an appeal to the Planning Inspector about the Council’s failure to issue a decision notice on their planning application.
Investigator's decision on behalf of the Ombudsman