North West Leicestershire District Council (22 010 909)
Category : Planning > Planning applications
Decision : Closed after initial enquiries
Decision date : 22 Dec 2022
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about how the Council worded a section 106 agreement. That is because the matter is late.
The complaint
- Mr X complained on behalf of himself, and three other members of the community. He said the Council’s wording of a section 106 planning agreement was ambiguous which meant money that was meant to be paid to the Parish Council to buy a local building was returned to the developer. Mr X wants the Council to pay the Parish Council the money set out in the section 106 agreement so the community can purchase a local building.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered information provided by the complainant including the Council’s complaint response.
- I considered the Ombudsman’s Assessment Code.
- The complainant had the opportunity to comment on my draft decision. I considered their comments before making a final decision.
My assessment
- The Council granted planning permission in 2015 for a development of houses. As part of that planning permission, it included a condition requiring the developer to pay the Parish Council £300,000 for it to purchase a local building. This was part of a legal section 106 agreement. The developer shared a copy of the section 106 agreement with the Parish Council.
- The Parish Council contacted the Council in 2018 to clarify if the terms of the agreement meant the money had to be spent within a certain time, otherwise it would be returned to the developer. The Council said its view was not but suggested the Parish Council take independent legal advice.
- In 2020, the developer asked the Council to repay the money as it had not been spent. The Council refused. The Council and the developer went to arbitration. The Arbitrator decided the wording of the agreement placed a five-year time limit on the money. The Council subsequently returned the money to the developer.
- Mr X complained. He said the Council had badly worded the section 106 agreement and the money for the Parish Council was not intended to be time limited. He said the Council was negligent. The Council sought legal advice but concluded that the condition was lawful and not the result of negligence.
- Mr X complained to the Ombudsman in 2022. Therefore, this is a late complaint and we should not investigate. We have discretion to set aside this restriction where we decide there are good reasons; however in this case I have decided not to exercise discretion. As a member of the Parish Council Mr X was aware of the wording of the section 106 agreement in 2015, including the clause around time. He had contact with the Council about the agreement and potential time limitations in 2018. Mr X also knew the property was not for sale so time might be an issue. Therefore, I am satisfied Mr X had notice of the matter from 2015 and could have complained to us sooner.
Investigator's decision on behalf of the Ombudsman