The Ombudsman's final decision:
Summary: Mr X says the Council is at fault for not taking action to ensure compliance with the terms of a Section 106 agreement. The Ombudsman has found evidence of fault by the Council because it did not monitor compliance with the agreement as it should have done. However, he does not consider this fault has caused Mr X an injustice. He did not find any evidence of fault regarding the Council’s decision not to take enforcement action. For these reasons, he has ended his investigation of this complaint.
- Mr X complains that the Council failed to monitor compliance with a Section 106 agreement for a development where he lives. He also says the Council’s decision not to take enforcement action to require compliance with the terms of a Section 106 agreement is wrong.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- As part of my investigation I discussed the complaint with Mr X and considered information he provided. Enquiries were also made of the Council and I considered its response. I set out my initial view on the complaint in a draft decision statement and I considered Mr X’s comments in response.
What I found
- A Section 106 agreement is a legal contract between a council and a developer. They are often used to help mitigate the negative impact of a development. Councils will monitor compliance with the Section 106 agreement.
- Councils can take enforcement action if they find planning rules have been breached. However, councils do not have to take enforcement action just because there has been a breach of planning control. Government guidance says:
“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
- Planning permission was granted for a development of dwellings on land in the area where Mr X lives. As part of the planning permission, a Section 106 agreement was drawn up.
- The Section 106 agreement included a requirement for a landscaped area with a children’s play area if appropriate. The agreement required that building of this area should be constructed before more than 50% of the agreed number of dwellings for the site were built and that it should convey the area to the parish council. I understand that 50% of the dwellings were complete in 2006.
- The agreement also required that £6000 was made available for the maintenance of the area with a further £4000 made available if it was thought appropriate to provide children’s play equipment and safety services.
- The Council accepts it did not monitor compliance with this aspect of the Section 106 agreement as it should have done. For this reason, it was unaware the landscaped area was not provided.
- Mr X has been pursuing the Council about its failure to ensure compliance with the agreement since he learnt about it. The Council has explained that:
- it is now informally seeking compliance by the developer who owns the landscaped area;
- the developer has approached the parish council to see if it would accept the landscaped land and the responsibility to maintain it along with the £6000 payment specified for this purpose in the agreement;
- as the developer is in the process of trying to discharge its obligations, it does not consider enforcement action is appropriate at this time. Nor does it consider the condition of the landscaped area currently to be a hazard or nuisance;
- if the developer’s negotiations with the parish council fail, it will be for the developer to find alternative provision for the maintenance of the area. However, owing to the small size of the area and the costs involved in taking enforcement action, it is unlikely the Council would pursue enforcement action against the developer should compliance not be achieved; and
- it does not consider it appropriate to provide the children’s play equipment. because the area would be too close to residential houses (the details of which were not known when the agreement was prepared).
- Mr X remains unhappy with the Council’s actions and has approached the Ombudsman regarding the matter.
- The Ombudsman finds fault by the Council as it failed to monitor compliance with the Section 106 agreement as it should have done so.
- The Section 106 agreement says that the landscaped area should include a children’s play area if it was considered appropriate. It did not say such an area must or would be provided.
- The Council says that it does not consider the area is appropriate for a children’s play area because it would be too close to dwellings within the development. I consider this is a valid planning consideration and thus there are no grounds on which I can question the merits of the Council’s view on this matter.
- I note that there are concerns the play area was not provided because of delay by the Council enforcing the Section 106 agreement and the current condition of the area. However, as the area is considered inappropriate for a play area I cannot conclude any delay by the Council altered the outcome or that Mr X has been caused injustice.
- I understand the Council has liaised with the developer who in turn is negotiating with the parish council to fulfil the part of the agreement requiring the landscaped area to be conveyed to the parish council. While I note the agreement required the developer to convey the landscaped area to the parish council far earlier, it is the case that it is now trying to fulfil its obligations in this regard. Planning guidance sets out that enforcement action is discretionary and should be proportionate. As the developer is currently seeking to comply with the agreement I do not see that there are grounds to question the Council’s view that it is not appropriate to instigate enforcement action at this time.
- I note the Council is unlikely to take enforcement action if the developer does not reach an agreement with the parish council. However, enforcement action should be proportionate and, in this case, the Council says such action would not be expedient. This is a decision the Council is entitled to make. Furthermore the Section 106 agreement is a legal contract between the Council and the developer and it is therefore up to the Council whether to enforce all or part of it.
- I have found evidence of fault by the Council because it failed to monitor compliance of the Section 106 agreement as it should have done. However, I do not consider this has resulted in an injustice to Mr X. I did not find any evidence of fault by the Council regarding its decision not to take enforcement action against the developer. For these reasons, I have ended my consideration of this complaint.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman