Summary: We will not investigate this complaint about the Council’s failure to consult with Mr X about highway works to be carried out under a s278 1980 Highways Act agreement. This is because there is no evidence to suggest fault by the Council.

The complaint

1. The complainant, who I refer to as Mr X, complains the Council did not consult on highway works to be carried out by a housing developer under a s278 1980 Highways Act agreement when it consulted on the developer’s planning application. He says the Council’s consultation focused on the application site and did not include site notices along the route of the proposed traffic scheme so he lost the opportunity to comment on a scheme which will have a direct impact on him.

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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 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant, including the Council’s response to the complaint.
4. I considered the Ombudsman’s Assessment Code.

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Legal background

5. A section 278 agreement (or s278) is a section of the Highways Act 1980 that allows developers to enter into a legal agreement with a Highway Authority to make permanent alterations or improvements to a public highway, as part of a planning approval.

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My assessment

6. Mr X complained to the Council that it did not consult on highway works which will be carried out under a s278 agreement at the time it consulted on the developer’s planning application.
7. The Council explained to Mr X that the highway works did not form part of the planning application and that they would not have done so because highway works do not need planning permission. It said the works form part of the Council’s Transport Strategy and Local Plan and that public consultation for both of these took place in 2017.
8. The developer is funding the works as part of the planning approval received for their housing development. There is no requirement for councils to consult on such works as part of the planning application process.
9. Having obtained agreement for the developer to carry out and fund the highway works, the County Council’s Highway Authority’s next step will be to authorise the works by making a Traffic Regulation Order (TRO). Once the TRO application is made, public consultation will take place in the normal way and this will be Mr X’s opportunity to comment on the works.

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Final decision

10. We will not investigate Mr X’s complaint because there is no evidence to suggest fault by the Council.

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Investigator's decision on behalf of the Ombudsman