Summary: We will not exercise discretion to investigate this complaint about the Council’s failure to adopt highway roads and infrastructure on an estate following the insolvency of the developer. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr X could not have complained to us sooner.

The complaint

1. Mr X complained about the Council’s failure to complete highway adoption work on his estate following the insolvency of the developer. He says the Council should enforce the bond it received to complete the works and adopt the roads. He says his family and other residents have waited almost six years for the work to be completed.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
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 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

4. I considered information provided by the complainant and the Council’s response.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says he bought his home nearly 6 years ago and the highway infrastructure has not been completed by the developer who subsequently went bankrupt. The Council has a Highways Act 1980 s.38 adoption agreement in place with the original developer which included a bond which Mr X says should be used to complete the works. He says the unfinished estate is causing financial problems and difficulty for owners who wish to sell their homes.
7. Mr X has made complaints about the matter over the past 5 years, including a complaint to his Member of Parliament in 2024. The Council maintains that the status of the bond has been questionable given the changes in ownership of the company and its present insolvent status. It also said the bond is insufficient to cover the works as bonds only represent a percentage of the adoption work and information about utility services has not been provided by the former developer.
8. A council as highway authority has powers to enter an agreement with a developer to adopt the roads on a development but cannot force a developer to do so. Also, an agreement under Section 38 of the Highways Act 1980 gives a council a right to act if a developer defaults on the agreement in some manner. However, a council does not have any obligation to do so, and any decision is at its discretion. The council involved has a duty to protect public funds and no duty to carry out works in default of a developer.
9. The Government has published a guidance document on road adoption. It advises house-buyers to check if a section 38 agreement is in place when buying a new-build home. This states that at the time of purchase on a new property the buyer should not assume that a road will be adopted by a local authority to be a highway maintained at public expense. It also provides advice on what to do in case of a dispute. A Council can bring a road up to adoptable standard in agreement with the people who own property fronting (the frontagers). This is outlined in sections 205 to 218 of the 1980 Act. However, this may involve the frontagers each paying a proportion of the adoption costs.
10. We will not investigate this complaint because Mr X has been aware of the matter for several years and did not complain to us within 12 months. The time for receiving complaints is from when someone became aware of the matter they wished to complain about, not when they complained to the Council or it issued its final response. We would expect someone to complain to us within a year, even if they were dissatisfied with the time the complaints procedure was taking.
11. In this case we would not exercise any discretion to investigate because there is no duty on the Council to adopt the highway and it is essentially a legal matter.

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Final decision

12. We will not exercise discretion to investigate this complaint about the Council’s failure to adopt highway roads and infrastructure on an estate following the insolvency of the developer. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr X could not have complained to us sooner.

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Investigator's decision on behalf of the Ombudsman