Summary: We will not investigate Mr X’s complaint about the Council’s grants of planning permission and its refusal to take formal action to enforce a Section 106 legal agreement. This is because there is not enough evidence of fault by the Council and we cannot achieve any worthwhile outcome for Mr X.

The complaint

1. The complainant, Mr X, complains the Council has failed to act on his reports of possible breaches of a Section 106 legal agreement. He believes the Council has failed to properly interpret the requirements of the agreement and has granted permission for development which breaches it. He wants the Council to enforce the agreement and pay compensation to him and other people affected by the development.

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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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

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

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My assessment

5. The S106 agreement Mr X refers to dates back some 30 years. Amongst other things, the agreement required that a major development in the Council’s area provided an accessible fitness centre for members of the public at a reasonable rate.
6. Mr X disagrees with recent approvals granted by the Council over the past few years which he believes will result in breaches to the S106 agreement.
7. The owners have recently closed the fitness centre to members of the public and cancelled their memberships. They say this is to implement the planning permission granted by the Council. But Mr X believes the owners do not intend to reopen it to members and is unhappy about the changes approved as they drastically reduce the size of the centre and the facilities available. Mr X believes this cannot comply with the requirements of the S106 agreement and does not accept the Council’s position that they do.
8. We cannot achieve any worthwhile outcome for Mr X by investigating this complaint. The Council granted planning permission for the changes several years ago and carefully considered objections to the proposals which raise the same issues Mr X raises now.
9. It is not for us to question the Council’s judgement on the issue and we cannot tell it to revoke the planning permission or stop the development from going ahead. We also cannot say the Council must interpret the S106 agreement in the way Mr X wants it to and take action to enforce it, as Mr X would like.
10. Mr X is concerned the owners may not reopen the fitness centre to members of the public but this is entirely speculative at this stage. It has previously made statements suggesting it intends to do this but has since confirmed to the Council that the fitness centre will reopen as normal once the work is complete. In the event this does not happen Mr X should report the issue to the Council and it will investigate. But it cannot take action to stop a possible future breach of the agreement and we cannot provide a remedy for an injustice which has not yet taken place.

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Final decision

11. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council and we cannot achieve any worthwhile outcome for Mr X by investigating his complaint.

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Investigator's decision on behalf of the Ombudsman