Summary: We will not investigate this complaint about the Council’s failure to follow up on a Section 106 agreement relating to the housing estate on which Mr X lives. This is because the complaint is a late complaint and so falls outside our jurisdiction.

The complaint

1. The complainant, who I refer to as Mr X, says he holds the Council responsible for failing to follow through on the terms and conditions of a legally weak Section 106 agreement when challenged about it in 2018. He says the Council is unwilling to seek a solution to the problems he and other residents continue to face surrounding membership of the management company of the housing estate on which he lives.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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. Mr X is a freeholder who lives on a housing estate which is made up of apartments in a main house and a number of apartments in other buildings on the estate. Only residents who live in the main house are members of the management company which has responsibility for the grounds of the estate. Mr X does not live in the main building and so is excluded from the management company but he wants a say in how the amenity area around his property is managed.
7. In 2018 he raised the matter with the Council, saying the situation was undemocratic and contrary to the management plan submitted as part of the applications to redevelop the site back in the 1990s which had linked to it a Section 106 agreement. A Section 106 agreement forms part of the planning permission and is a mechanism which makes a development proposal acceptable in planning terms that would otherwise not be acceptable.
8. In 2019 the Council wrote to Mr X to explain that in its view his complaint related to the composition of the management company rather than the management of the land which was its main concern. It said the Management Plan submitted to the Council in compliance with the Section 106 agreement was approved by the Council because it considered it sufficient to satisfy its requirements in respect of the maintenance of the land.
9. It further explained that even if it was possible for it to take enforcement, it would not do so because it would not be expedient. It told Mr X it believed the matter to be a legal dispute between the residents of the estate.
10. The restriction highlighted at paragraph 3 applies to Mr X’s complaint. He was informed of the Council’s position in 2019 and I see no grounds which justify exercising discretion to investigate the complaint now.
11. Moreover, even if the complaint was not late, we would not investigate. The Council considered the matter and explained, even if were able to, why it would not take enforcement action. This is a decision for the Council to make and its merits are not open to review by the Ombudsman.

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Final decision

12. We will not investigate Mr X’s complaint because the complaint is a late complaint and so falls outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman