Summary: Mr X complains about the Council’s handling of a planning obligation it agreed prior to a decision on a planning appeal made to the Planning Inspector. We will not investigate the complaint because we are unlikely to find evidence of fault by the Council which caused him injustice.

The complaint

1. The complainant, who I refer to as Mr X, says the Council is at fault because one of its officers approved a planning obligation agreement with developers prior to the Planning Inspector’s determination on the developers’ appeal against the Council’s refusal to allow a new dwelling to be built on open space used as a play area in his locale.

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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 we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.(Local Government Act 1974, section 24A(6), as amended)

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. In considering the complaint I spoke to Mr X’s representative and reviewed the information he and the Council provided. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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What I found

5. Developers submitted a planning application to build a new dwelling on open space that for years has been used as a play area in Mr X’s locale. The Council refused permission and the developers appealed to the Planning Inspector.
6. Although the Council defended the appeal, in accordance with the Government’s Planning Practice Guidance, it had to negotiate a section 106 agreement with the developers. A s106 agreement is a planning obligation agreement which addresses a matter which might otherwise have led to planning permission being refused. In this case the Council negotiated a financial contribution from the developers to offset the loss of the existing open space to be used at a nearby recreational ground.
7. Unhappy with the Planning Inspector’s decision to allow the appeal, and believing the Inspector had only done so because the s106 agreement had been made, Mr X complained to the Council. He also made an FoI request for minutes of the debate which led to the execution of the s106 agreement.
8. In responding to the complaint, the Council explained the procedure involved with planning obligation agreements and the test to be fulfilled if they are to be used to mitigate the impact of a development. It explained that because planning permission cannot be granted “subject to an obligation” (in the way a planning condition can be), the planning obligation has to be concluded prior to a decision being made on the application and this is the case whether the decision is to be made by a council or a Planning Inspector. The Council clarified that the conclusion of a s106 agreement before a decision does not pre-determine the decision and that in this case, while the Council was disappointed with the decision, it was the Planning Inspector’s to make.
9. With regard to Mr X’s FoI request, the Council told him that it did not hold the minutes he had requested and gave details of the Information Commissioner if he wanted to complain about the outcome of his request.
10. Dissatisfied with the Council’s response, Mr X complained to us.

Assessment

11. In support of his claim that the Planning Inspector had been bound to allow the appeal because the Council had negotiated a s106 agreement prior to it, Mr X has referred to the Inspector’s comment in the appeal decision which says the Inspector determined the appeal on the basis of the executed deed. However, this does not mean the Inspector was bound to allow the appeal and the Council has explained why this is the case when it responded to his complaint.
12. Mr X says the s106 agreement was concluded against the wishes of members and without consultation and that the amount negotiated was too low. However, it is for Council officers, using their professional judgement, to conclude such agreements and decide on a suitable financial contribution. We cannot review the merits of such decisions.
13. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner and as this step has already been taken by Mr X, we will not investigate the matter.
14. In responding to my draft decision, Mr X has referred to a s52 legal agreement between the Council and developers from 1985 where, as a condition of receiving permission to build new dwellings, the developers agreed to provide the open space play area and equip it but that this never happened. This matter is not one we would investigate as the events are too far in the past to be considered now.
15. The Council has previously explained to Mr X that the revocation of a s52 agreement can be sought and why the Planning Inspector could not revoke it at the time of the appeal as different legislation and procedures are involved. The Council also explained why a s106 agreement had to be entered into in advance of the appeal. It was open to the Planning Inspector to have refused the appeal, which was the outcome the Council wanted. The Planning Inspectorate is not a body which falls within our jurisdiction.

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Final decision

16. We will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council which caused him injustice.

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Investigator's decision on behalf of the Ombudsman