Summary: We have discontinued our investigation of this complaint, about the fact the Council did not secure payment of a bond from a developer. This is because it would be more appropriate for the complainant to take the matter to court, and investigation by us will not provide a meaningful outcome.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P complains the Council did not secure the payment of a bond from the developer of his estate, which was meant to provide funds to complete street works if the developer failed to do so. As this is what the developer then did, Mr P says the Council’s decision not to secure payment means the streets remain unfinished, which is dangerous and has caused damage to residents’ vehicles.

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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 we cannot achieve the outcome someone wants, that there is no worthwhile outcome achievable by our investigation, or that there is another body better placed to consider the matter. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered evidence provided by Mr P and the Council as well as relevant law, policy and guidance.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

Advanced payments code (APC)

6. The APC applies where new buildings are proposed on a private street. In applicable cases, the local highways authority must serve a notice requiring the developer or landowner to pay or secure a sum of money. This sum reflects the estimated cost of bringing the street up to a proper standard. The purpose of this process is to make sure there is funding available if the street is not completed properly. In most cases, building work cannot lawfully begin until this requirement has been met.
7. The law places a duty on the highways authority to serve the APC notice and to fix the amount required. The authority also has discretionary powers to secure payment, revise the amount if needed, and take action where building work proceeds without compliance.

Mr P’s complaint

8. In 2020 the developer obtained permission from the local planning authority (West Oxfordshire District Council) to construct a new estate of approximately 30 properties. After establishing it met the criteria for the APC process, the Council, as highways authority, served a notice on the developer, requiring it to pay or secure a significant sum of money. The developer did not comply with the notice, but began construction of the estate anyway.
9. After completing the houses, Mr P says the developer left the estate in February 2023, without finishing the streets or satisfactorily completing several other aspects of the work.
10. In August 2025 Mr P submitted a complaint to Council. He highlighted that the Council had not secured the payment required under the APC notice, and that it was an offence for the developer to have begun work without complying with the notice. Mr P complained the Council had not taken responsibility for the matter, and that it had failed to respond to concerns raised by residents about it.
11. In response, the Council explained its legal duty was to serve the APC notice, which it had done, but that it did not have a duty to enforce compliance by the developer. It said that, in this case, it had not considered it proportionate to enforce the notice, because it had been in negotiation with the developer to make a private street agreement (which, upon being made, would provide the developer an exemption from the APC notice). This agreement was not made, because the developer had come into financial difficulty, which meant the APC remained registered as a local land charge.
12. The Council explained the local planning authority had served a breach of condition notice on the developer, because of its failure to complete the street works. However, it said it could not complete the works itself, as Mr P had requested, because it could not lawfully carry out work on privately-owned streets, and because it did not have the funds for the work.
13. In October 2025 Mr P referred his complaint to the Ombudsman.

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Analysis

14. Mr P has explained the aim of his complaint is, principally, for the Council to carry out the unfinished works on the estate.
15. However, even if we were to find fault by the Council in not securing the payment, this is not an outcome we can realistically achieve through an investigation. Completing the street work is a major undertaking with a very significant cost for the Council. We cannot make the decision the Council should commit to this, which is a matter better suited to be considered in court. And, given the number of households affected by the unfinished works, I do not consider taking legal action to be an unreasonable suggestion in this case.
16. Mr P has highlighted that the Council’s factsheet about the APC process says it “will” take legal action against a developer which does not comply with an APC notice. This implies it should be an automatic process for the Council.
17. However, the Council has published a separate APC process chart, which clearly shows enforcement is a discretionary power, for it to consider on a case-by-case basis. This reflects my own understanding of the APC process.
18. I therefore agree the Council’s factsheet is potentially misleading in this respect. I do not consider this provides enough evidence of fault to justify an investigation on its own, but I would ask the Council to note this observation, and consider making an amendment to the factsheet, to properly reflect its possible responses to non-compliance by a developer.

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Decision

19. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman