Summary: Mr D complains the Council delayed adopting a road and implementing parking restrictions. The Ombudsman has not found evidence of fault by the Council. He has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council delayed adopting a road on the new estate where he owns a property. He says the Council should have surfaced the road and then imposed parking restrictions.

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What I have investigated

2. Mr D refers to events going back several years. I am looking at what happened from 2018 onwards.

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The Ombudsman’s role and powers

3. 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. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have considered the information provided by Mr D and spoken to him. I asked the Council questions and carefully examined its response and evidence.
6. I have shared my draft decision with both parties.

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What I found

What happened

Background

7. A developer started building new homes in 2008. In 2010 after works had halted and recommenced the developer entered into a Section 38 Agreement with the Council. In 2015 the developer sought planning permission from the Council to have emergency access next to the estate on a Lane (the Lane). The Council granted permission. The requirement to carry out works to the Lane by the developer was set out in a Section 106 Agreement and planning conditions. This mean the Council could not adopt the new roads on the estate until all the relevant requirements in the Agreements were fulfilled. In 2017 the Council chased up the developer to complete access to the Lane.

Events I have investigated

8. In January and February 2018, the Council was in contact with the developer about completing works to the Lane. In March, the Council’s Legal Team advised Officers the developer would need to apply to amend the Section 106 Agreement and planning conditions if they did not want to carry out works to the Lane. In April, the Council held a case discussion and had further contact with the developer about its legal obligations.
9. In May Mr D asked the Council why there were no parking restrictions on the estate. The Council explained parking enforcement could not be done until the roads had been adopted. In June, the Council instructed its Legal Team to write to the developer about non-completion of works to the Lane. This was a breach of the Section 106 Agreement. The Council sent the letter in July. It also opened a planning enforcement case. On 6 July Mr D told the Council he had written to the developer. The Council replied the following week that it was trying to move matters on with the developer.
10. On 1 August, the Council received an enquiry from Mr D’s MP on his behalf regarding the roads. The Council replied on 17 August reiterating its position. Also in August, the Council sought advice from the Legal Team and additional guidance on how to progress matters in October. On 24 October Mr D asked for an update. The Council responded on 31 October setting out the current position. Mr D then submitted a formal complaint on 1 November. Also, that month the Council chased up the developer about lack of progress. It replied to Mr D’s complaint on 9 November explaining again the current situation and that no parking restrictions could be considered until the roads were adopted. At the end of the month the Council decided to issue a ‘letter before action’ for breach of the Section 106 agreement to the developer. In December, the Council continued to contact the developer.
11. On 3 January 2019 Mr D asked the Council to escalate his complaint. In January and February, the Council considered its options to progress the road issue. It looked at whether it could remove the need for emergency access via the Lane and if this would be acceptable for the Planning Team. In February Officers visited the site and confirmed the Lane was not at an adoptable standard. On 13 February, the Council replied to Mr D’s complaint. It explained the estate roads could not be adopted yet because legal Agreements had not been met. As a result, parking restrictions could not be considered at present.
12. On 5 March, the Highways Team met the Assistant Director to review the case. Officers agreed amendments could be made to allow the roads to be adopted but this was dependant on discussions with the Planning and Legal Teams. Later that month those Teams considered whether access to the Lane could be removed from the Agreements. The Council contacted relevant third parties for their view. In April, the Council chased up the third parties and had further detailed contact with them in May about modifying the Section 106 Agreement. Later in May the Council wrote to the developer advising it would not enforce the Lane access and sought to confirm this. In June, the developer asked this be set out in a variation to the Section 106 Agreement which the Council has now taken forward.

What should have happened

13. When the Council grants planning permission for a development it can impose planning conditions. In addition, a Section 106 Agreement, which is an agreement with the Council to meet certain obligations, will also be in place. If a developer wants the Council to adopt a new road (so to maintain it at public expense) they have to enter into a Section 38 Agreement with the Council. The road has to be constructed in line with the approved plans, the Section 106 and 38 Agreements and be at an “adoptable standard” determined by the Council. The Council will usually require the developer to fulfil its obligations as set out in the Agreements before it will consider adopting the road. If the developer fails to meet the requirements or delays the Council can open a planning enforcement case and consider issuing an enforcement notice or a “letter before action”.
14. The Council has the discretion to consider varying a Section 106 agreement but is not obliged to do so. In a case where there is delay by the developer and the Council considers part of the Agreement is no longer required it can, with the agreement of the relevant Teams, seek to vary the formal Agreement.
15. Once the Council has adopted a road it can consider whether parking restrictions are required. This is done on a case by case basis following an assessment by Highways Officers. To implement parking restrictions and enforcement the Council must have a Traffic Regulation Order in place. That requires a public consultation and approval by an Executive Member. The process can take nine to 12 months.

Was there fault by the Council

16. Mr D says the Council delayed adopting the roads on the estate. I do not see evidence of fault by the Council. During 2018 it was in regular contact with the developer chasing up fulfilment of the Section 106 Agreement and planning conditions which required emergency access to the Lane. The Council could not adopt the roads until all the works set out in the Agreements and conditions were met. It followed the correct process and opened a planning enforcement case and issued formal letters to the developer. Because of continued delays that were not due to the Council it decided to look at other ways to progress the case in 2019. It sought to vary the Section 106 Agreement to remove the need for works to the Lane. There was no duty on the Council to seek this variation, it was at its discretion to do so. This is not a usual course of action but the Council decided to do so after it had sought to progress matters via the usual enforcement route. In respect of varying the Section 106 Agreement the Council followed the correct process and there was no evidence of delay on its part. I appreciate Mr D disagreed with the need for works to the Lane in the first place. That was a planning requirement and so the Council was correct to chase the developer for compliance in 2018. The Council exercised discretion once this course of action did not result in significant progress. Whilst Mr D may disagree with the decisions taken by the Council it is not for the Ombudsman to question the merits of such decision making in the absence of fault. I am satisfied the Council acted reasonably and without any significant delay.
17. Mr D wants parking restrictions on the estate. The Council has already correctly explained to him that such restrictions cannot be considered until the roads are adopted. There is no fault by the Council in this matter.

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Final decision

18. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

19. I have not looked at what happened prior to 2018 because Mr D could have complained to the Council and the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman