Summary: Mr C complained about the Council’s response to his report about a developer building a children’s play area near his property. Mr C says he has an inappropriate development too close to his home and will suffer from a loss of privacy which will affect the saleability and value of his property. We have ended our investigation as we have found insufficient evidence of injustice as a direct result of any fault by the Council and because we cannot achieve the outcome sought.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the Council’s response to his report about a developer building a children’s play area near his property which had not been shown on the approved plans when he bought the property. Mr C says the Council failed to ensure the developer provided details within the required timescales and failed to properly consider the details before approval. Mr C also complains the Council gave incorrect information about trying to agree changes to the equipment with the developer and unreasonably delayed providing information and updates.
2. Mr C says because of the Council’s fault he has an inappropriate development too close to his home and will suffer from a loss of privacy which will affect the saleability and value of his property and the developer also delayed completing other site works while the Council was investigating the matter.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I read the papers provided by Mr C and discussed the complaint with him. I have considered information about the development which is available to the public on the Council’s website. I have also considered the Council’s response to my enquiries. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and relevant legislation

Planning permission

5. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land. Planning permission may also be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Section 106 agreements

6. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force. If an applicant disagrees with the Council’s decision regarding an application to modify or discharge a section 106 agreement they may appeal to the Planning Inspectorate.

Planning history

7. Planning permission was granted on appeal in 2015 for a residential development subject to condition and a unilateral undertaking/section 106 agreement. The undertaking contained requirements in relation to ‘open space provision’ for the developer including:

• submission and approval of open space details before occupation
• open space to be provided in accordance with the approved Open Space Details and available and safe to use before more than 80% occupation

8. The unilateral undertaking provided the following definitions:

• a Locally Equipped Area for Play (LEAP) was an unsupervised equipped play area containing at least five different fixed items of play equipment (including one multi-unit) which are suitable for use by children of early school age (aged 4 – 10 years old) designed and laid out to meet relevant safety standards for play facilities (which shall be the appropriate European Standard), including suitable safety surfacing, fencing and seating for supervising adults, the area shown hatched dotted green on the Plan.
• ‘Open space’ was defined as the area of land shown dotted green on the Plan to be provided by the Owner within the Development of 1,240 square metres.
• ‘Open space details’ would be the detailed plan and specification for the Open Space including details and specifications for works and materials, how the Open Space would be graded, drained, landscaped, seeded, planted, laid out and provided safe and fit for use by the public and specifically in relation to the LEAP a specification of the construction method and materials to be used.

Guidance for Outdoor Sport and Play

9. The Fields in Trust ‘Guidance for Outdoor Sport and Play’ sets out a minimum dimension of 10 metres by 10 metres for the activity zone and a minimum buffer zone of 5 metres between the activity zone and nearest property containing a dwelling for Local Areas for Play (LAPs) aimed at very young children. It sets out a minimum dimension of 20 metres by 20 metres for the activity zone and 20 metres between the activity zone and the habitable room façade of dwellings for LEAPs aimed at children who can go out to play independently. The guidance says a suitable relationship can be created by using the minimum buffer zones to reduce the possibility of conflict between local residents and those at play.

Key events

10. The following is a summary of key events. It does not include everything that happened.
11. Mr C has explained he started the purchase process for his new property during 2021 and moved into the property in April 2022.
12. Mr C wrote to the Council at the end of July 2022 to say he had understood the area outside his house would be green space with a few high-quality wooden climbing obstacles. However, the developer had started work on the area and was installing what he considered to be poor quality play equipment. Mr C explained neighbours were ready to make a complaint as the development being introduced was not what was sold to them. Mr C stated he wished to make a formal complaint to remove the equipment and revert the area to grass.
13. The Council did not treat Mr C’s correspondence above as a formal complaint under its complaints procedure but rather as a planning enforcement request/enquiry. Given the content of Mr C’s correspondence and as it was his initial report of the issue, I do not consider the Council’s approach here was unreasonable. I also note the Council wrote to Mr C in early August to say his concerns had been passed to colleagues in planning enforcement to assess whether there was a breach of planning control.
14. Mr C emailed the Council in mid-October to say residents did not want play equipment in this area and had been sold their properties under the impression it would be green with only trees and bushes.
15. The Council sent a holding reply towards the end of October to say it was investigating the matter but it may take some time. The Council met with the developer in early November.
16. The Council provided a substantive response to Mr C in early January 2023 and apologised for the delay. The Council explained that the relevant policy requirements for this development to provide public open space. The Council further explained the s106 agreement required a LEAP but it had not proved possible to provide this within a single play area due to underground site constraints. Therefore, it was decided to split the requirement over two areas (North and South areas). This would mean the provision of a ‘trim trail’ in the North and a special Local Area for Play (LAP) in the South with an adjusted associated buffer zone. The Council confirmed it was satisfied the proposed scheme complied with its policy and so the developer had satisfied the relevant obligation. Finally, the Council noted that if this information had not been provided to residents ahead of purchase this was a matter between them and the developer. The Council proposed no further action.
17. The Council approved the details of an open space plan in March 2023 for a special LAP. The Council has confirmed there is a 5 metre buffer zone around the play area which it considers to be a LAP and the garages belonging to the nearest two properties abut this zone with Mr C’s nearest habitable room being beyond this.
18. The Council has confirmed it considered the site was first occupied at the end of November 2020 and reached 80% occupancy at the end of December 2021. The Council has acknowledged the developer was in breach of its s106 obligation during the period.

My consideration

19. The Ombudsman will not normally investigate or continue to investigate a complaint unless there are good reasons to believe the complainant has suffered significant personal injustice as a direct result of the actions or inactions of the Council.
20. At the point Mr C purchased his property there were outstanding s106 requirements attached to the planning permission. The Council had not approved the required open space details which meant it was possible any proposals were subject to change. It was open to Mr C or his solicitor to have made further enquiries about any outstanding obligations at the time to avoid the situation he now finds himself in. This is not to say Mr C has not suffered a personal injustice, distress or loss but this cannot be shown to be directly the result of the actions or inactions of the Council in this matter.
21. Mr C has also confirmed that he wants the play area removed entirely and the land to be returned to open green space. This is also not an outcome further investigation by the Ombudsman can achieve given the implementation of a valid planning permission.
22. Mr C disputes there is a 5 metre buffer zone to his garage and says this is about 3 metres. Mr C says the distance to his nearest habitable room is 8 metres. I do not propose to investigate this aspect of the complaint further as any difference here is unlikely to be noticeable when viewed from Mr C’s home and so we could not say would cause an significant injustice to Mr C in terms of his residential amenity.
23. Mr C has recently raised a concern about whether the Royal Society for the Prevention of Accidents inspected the play area and prepared a report before it was in use as required under the s106 agreement. This is a new issue and has not formed part of my investigation.

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Final decision

24. I have ended my investigation and do not uphold Mr C’s complaint. This is because there is insufficient evidence of significant personal injustice as a direct result of any fault by the Council to justify further investigation by the Ombudsman and we cannot achieve the outcome sought.

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Investigator's decision on behalf of the Ombudsman