Summary: We will not investigate Mrs X’s complaint about the Council’s failure to inform her of outstanding payments owed as part of an agreement to develop her property. This is because the injustice she claims lies in the payments she agreed to make to the Council as part of the agreement, rather than any fault by the Council. If Mrs X believes the Council has breached the terms of the agreement it would be reasonable for her to take the matter to court.

The complaint

1. The complainant, Mrs X, complains the Council failed to contact or invoice her about outstanding payments owed under a “Section 106” planning obligation dating back to 2014. She says her solicitor made her aware of the issue as part of the sale of her property in 2022 and she had no alternative but to make the payments plus interest.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Mrs X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X entered into a Section 106 planning obligation as part of the process to obtain planning permission to develop her property. The agreement required Mrs X to pay almost £4,000 for two separate contributions to make her development acceptable.
7. Mrs X entered into the agreement with the Council of her own free will and agreed to inform the Head of Planning and Health within five working days of commencement of the development, at which point the requirement to pay came into effect.
8. The agreement did not contain any requirement for the Council to issue an invoice within a certain period of time; rather the agreement allowed it to increase the amount owed in line with the Retail Price Index and to add interest at a rate of 5% above the base rate from the date the payment became due. Mrs X agreed to these terms.
9. There is no suggestion Mrs X informed the Council that she had commenced the development as the agreement required and having signed the agreement as a deed which was registered against the property, she was not entitled to assume the payments were no longer due.
10. The injustice Mrs X claims results from the terms of the agreement rather than any fault by the Council. We will not therefore investigate the matter further. If Mrs X believes the Council has breached the terms of the agreement it would be reasonable for her to take the matter to court.

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Final decision

11. We will not investigate this complaint. This is because the injustice Mrs X claims is the result of the agreement she signed to make her development acceptable, rather than any fault by the Council.

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Investigator's decision on behalf of the Ombudsman