The Ombudsman's final decision:
Summary: I uphold Mr C’s highways complaint as there was fault by the Council. However, I do not consider it caused Mr C an injustice which would need the Council to take further action.
- The complainant, whom I shall refer to as Mr C, complains the Council failed to notify the County Highway Authority of the Building Regulations approval for a new housing development. As a result, the County Council did not serve a notice under the Advance Payments Code and no arrangements were in place to secure the completion of the access road to the development to an adoptable standard. Mr C also complains the Council has not taken enforcement action about the planning condition requiring completion of the highways works. Mr C says the road is in a poor state and is unsafe for his wife who has mobility issues to use and its condition has affected the value of his home.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
How I considered this complaint
- I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.
What I found
- The Highways Act 1980 provides for making up private streets. Section 38 of the Act gives highways authorities the power to adopt a highway, by agreement with any person liable to maintain it, following which the highway is maintainable at public expense.
- Sections 219 and 220 provide for a developer to pay the relevant “street works authority” (here the County Council) the sum it may need for the works. The Act provides an exemption where a developer has a section 38 agreement.
- A district council (as building control authority) must tell the highways authority within one week of the grant of building regulations approval. The highways authority must then serve a notice on the developer within six weeks specifying the required payment. This is ‘the advance payment code’ (APC).
- The Council granted planning permission subject to conditions for a small development of houses in 2004. Condition 14 of the permission stated:
“The proposed state roads, footways, footpaths, tactile paving, cycleways, bus stops/bus lay-bys, verges, junctions, street lighting, sewers, drains, retaining walls, service routes, service water outfall, vehicle overhang margins, embankments, visibility splays, accesses, carriageway gradients, drive gradients, car parking and street furniture shall be constructed and laid out in accordance with details to be first submitted to and approved by the Local Planning Authority in writing prior to the commencement of the development hereby approved. Reason: In order to ensure the safety of both pedestrians and drivers using the highway.”
- The Council also granted building regulations approval in 2004. The Council should have told the County Council that Building Control had approved plans. Such notice would have triggered the APC procedures. The Council has not been able to provide evidence it told the County Council in 2004 due to the passage of time. The Council says it has a computer system for notifications which produces a template notice and it had a similar system in 2004. The County Council says it received no notice in 2004.
- Mr C bought a house on the development in April 2007. At the time Mr C bought his house the development was complete but the road serving it was not completed to an adoptable standard. Mr C says he received no advice during his purchase about the absence of an APC and/or section 38 agreement. Mr C says he did not buy the property directly from the developer and was the second occupier of the property. Mr C says he did not keep a percentage of the purchase price as he understood the developer was progressing the matter with the Council.
- The Council opened an enforcement case in 2009 as the estate roads and pavements had not been finished in accordance with condition 14. The Council issued a breach of condition notice to the developer in September 2009 requiring him to provide drawings for approval showing the proposed surfacing within one month. The notice required the developer to complete the works within two months of receiving the Council’s approval. The Council received the required details in October 2012 and approved these in November. The approved works remain outstanding and an independent estimate in 2014 found the cost would be over £32,000. The Council explored the possibility of the developer making the roads up to a lower standard (not adoptable) but these negotiations stalled. The Council has not taken further enforcement action about the planning condition requiring completion of the highways works. Firstly, the Council considered the works would be completed via a section 38 agreement with the County Council. Secondly, once these negotiations stalled the Council became aware of the potential insolvency of the developer which would still leave the works outstanding.
- I do not consider the Council was at fault in deciding to negotiate rather than issue formal enforcement action against the developer in the circumstances as set out. A planning condition provides no guarantee that specified work will be completed as the developer may apply to vary or remove it or may cease to trade. An enforcement notice would not secure completion of the works if the developer went into administration.
- The proper procedure for ensuring a road on a new development will be made up to an adoptable standard is to enter a section 38 agreement with the developer, or to serve an APC Notice requiring the developer to pay a sum equal to the cost of completing the work. While a section38 agreement is voluntary and relies on the agreement of the developer, service of an APC Notice is mandatory and failure to comply with it can leave the developer open to a fine.
- I consider on balance the Council did not provide the required notification to the County Council that it had given building control approval for the development. I consider this to be fault. This fault meant the County Council did not serve an APC Notice requiring the developer to provide financial security to ensure the road was made up to an adoptable standard. However, I also consider the County Council may not have taken action under the APC notice as the developer was working towards a section 38 agreement at the time.
- In addition, when Mr C bought his home there was nothing in place to guarantee the road would be made up to adoptable standard. The usual pre contract searches would have revealed the development’s street was not adopted as publicly maintainable highway, the developer had not provided any financial security under the APC and there was no adoption agreement in place under section 38 of the Highways Act 1980. I cannot say what advice Mr C’s solicitor provided on this issue but it would have been correct for them to have warned Mr C of the risks. In these circumstances it was for Mr C to decide whether to continue with his purchase, to negotiate a lower price with the seller to account for the possibility the road would not be made up to an adoptable standard, or to decide not to buy the property at all. By choosing to continue with his purchase in these circumstances Mr C accepted the risk the road may not be completed by the developer or adopted by the Council. This has contributed to his injustice.
- As Mr C could or should have been aware of the risks when he bought his property I do not consider it appropriate to recommend the Council use public money to complete the work or provide a remedy to Mr C. I would encourage the Council to continue to use its best efforts to negotiate a solution between the parties.
- I have completed my investigation and uphold Mr C’s complaint as there was fault by the Council. However, I do not consider it caused Mr C an injustice which would need the Council to provide a remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman