Summary: Mr X complains the Council did not take enforcement action against a developer who failed to fully implement the development where he lives. We have discontinued our investigation as there is no significant personal injustice to Mr X.

The complaint

1. Mr X complained the Council did not take enforcement action against a developer who failed to fully implement the approved development. He said the houses have been built for 6 years but the GP surgery and community hall have not been built.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

3. I have considered Mr X’s complaint and have spoken to him about it.
4. I have also considered the Council’s response to Mr X’s complaint and to my enquiries.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Law

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
7. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

Section 106

8. Section 106 of the Town & Country Planning Act 1990 states a local planning authority (the Council) may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land.
9. A Section 106 (S106) is a legal agreement between an applicant seeking planning permission and the Council, which is used to mitigate the impact of the development on the local community and infrastructure.

What happened

10. The Council granted planning permission for a development in 2010 subject to a S106. The development included 195 houses, a GP surgery and a community building/scout hut. Mr X bought a house in the development in 2013.
11. The S106 contained a range of points. These required:
• the developer to notify the Council upon completion of the 1st, 65th, 130th and 195th dwelling; and
• the GP surgery and community building/scout hut to be available for occupation prior to the completion of the final dwelling.
12. The Council has confirmed the developer emailed the Council in 2011 with the following forecasts for occupation; August/September 2011 for the 1st dwelling, November 2012 for the 66th , October 2013 for the 131st and November 2014 for the 196th and final dwelling. The Council said these dates served the purpose for which the S106 intended. This was to trigger the S106 payments for the education, and open space contributions.
13. The Council also confirmed the final dwelling was occupied on 24 March 2014. According to the S106, the GP surgery and community building/scout hut should be available for occupation prior to the completion of the final dwelling. At the time of my investigation (2020) neither the GP surgery nor the community building/scout hut had been built.
14. The Council has not taken any formal enforcement action against the developer. The Council said that it has been actively engaged with the developer who have always confirmed a commitment to work with the Council to resolve the issue. The Council said it had taken the view that given the positive negotiations, it decided formal enforcement action would not be expedient in this case.
15. The Council said it met with the developer in July, October, and November 2019 to provide guidance on the matter of making amendments to the approved scheme. It said, as a result of the meetings, the developers submitted a non-material amendment application in January 2020. The application is for changes to the elevation materials and minor adjustments to the footprint of the GP surgery. Plans and elevations are included for the ‘doctor’s surgery and school conversation’. There is no mention of the community building/scout hut.

My findings

16. Planning enforcement action is discretionary, and councils can make the decision whether it is expedient to pursue or not. In this case, the Council decided its ongoing negotiations with the developer were preferable to taking enforcement action.
17. From the evidence I have seen, the Council has relied on the developer’s good reputation for delivering schemes nationwide and ongoing negotiations. It has, however, taken 6 years from the occupation of the final dwelling for the developer to submit an application to amend the design of the doctor’s surgery. This delay shows evidence of fault.
18. However, there is no evidence this fault had resulted in a significant personal injustice to Mr X. The Council said the residents of the other 195 homes in the development have not complained to the Council about this issue.

Mr X’s response to my draft decision

19. Mr X disagreed that no other residents had complained. He said the residents’ action group had complained to a local councillor and MP on a number of occasions.
20. I accept Mr X’s point. The Ombudsman could investigate whether the absence of the doctor’s surgery and community building/scout hut was a public interest matter. However, this would be a new complaint, from a group of residents.
21. In his response, Mr X said he was complaining on behalf of local residents, and offered to provide evidence of this, in the form of residents’ signatures. This may be the case but Mr X’s original complaint was on his own behalf and that is the injustice I have considered. If Mr X is complaining on behalf of others, it is a new complaint that he would need to make to the Council in the first instance.

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Final decision

22. I have discontinued my investigation. This is because it is unlikely that further investigation would determine the Council’s delay has resulted in a significant personal injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman