Summary: Mrs C said the Council failed to ensure that vital infrastructure was installed on the estate where she lives over five years despite being required to do so in the terms of the planning permission for the estate. She also complains about the state of the roads there. The Council was not at fault. It was not involved in planning decisions concerning the estate. The Magistrates Court decides whether roads are fit for purpose.

The complaint

1. The complainant, Mrs C, says the Council is at fault for its failure over several years to provide the infrastructure, such as footpaths, cycle routes, bus services, speed limit reductions that it should have provided under the grants of planning permission for her estate and others nearby built in the last five years.
2. Mrs C says this has caused injustice to her and her many neighbours because:
1. It is impossible to walk anywhere as there are few footpaths. The footpaths have 'arm-deep’ cracks in them which means disabled people and mothers with buggies cannot use them,
2. There are no buses that go from the estates to local schools or other facilities,
3. The roads into the estate are unlit and have no footpaths and no speed limit reduction. They are unsafe for pedestrians such as the many children who need to travel down them to and from school,
4. Cars are damaged on the roads on a daily basis by potholes.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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

6. I spoke to Mrs C. I then wrote an enquiry letter to the Council asking it for further information. I then considered the evidence I had gathered and applied any relevant law and guidance.
7. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Highways authorities

8. In areas where there are two tiers of local government, as in this case; a county council and a district council, the county council is the highways authority. It has a duty to maintain and repair highways in its area (apart from trunk roads and motorways). It must keep the roads safe for all users. It has primary responsibility for the surfacing of roads. (Highways Act 1980 s.41)
9. New road layouts, however, are not the responsibility of the highways authority. These are the responsibility of the local planning authority (see below) which must grant planning permission for new road layouts required for new developments such as new housing estates. The planning authority will approve planning applications for road layouts with input from the local highways authority.
10. When development is complete, the developers will hand over new roads to the highways authority which will then ‘adopt’ them as highways and assume responsibility for maintaining them.
11. If, after a highway has been adopted, a member of the public believes that part of the highway is ‘out of repair’, they can apply to the Magistrates’ Court to make the council repair it.
12. Those wishing to make such an application must first serve a notice on the authority asking it to accept its duty to maintain the area in question. If it accepts that it is responsible, the person can then apply to the Magistrates Court for an order requiring it to repair it. If the Magistrates agree that it is out of repair, they will issue an order requiring the authority to repair it. (Highways Act 1980 s.56)

Local planning authorities

13. In areas where there are two tiers of local government: a county council and a district council, the district council is the planning authority for that area.
14. In this case, Mrs C’s district council approved a planning application for development of an estate in the Council’s area in 2015. Decisions made by the district council are not the Council’s responsibility.

S.106 agreements

15. Where a local planning authority (in this case, the district council) grants planning permission, particularly for a large development, it will often come to an agreement with the developer that the developer will either carry out works themselves or pay the responsible council money to carry out works to improve local infrastructure such as roads and facilities. These are known as “s.106 agreements”. In this case, Mrs C’s district council came to such an agreement with the developer of her estate. (S.106, Town and Country Planning Act 1990)

What happened

16. In 2016, Mrs C’s district council, as planning authority, granted permission for a sizeable development on the edge of a local town. The development was the first in the area. It was sited at the end of a quiet road, Road A, which had no street lighting, pavements or speed limits. The development included new road layouts which were designed by the developers and approved by the district council with input from the Council as highways authority.
17. The district council considered that, over time, there would be further development in the area. This has been the case and a further residential estate has been built along with two business parks. A further estate is currently under construction.
18. The district council and the developer signed a s.106 agreement that the developer would pay over £400,000 to the district council which was ‘intended to provide funding for the design and the contractual management of a link road scheme which would be built by the Council as highways authority.
19. Mrs C says that, at an early stage in the development, she considered buying a house on the new estate. She looked at the district council’s local plan which contained plans for the estate to have sustainable transport links such as buses, cycleways and footpaths within five years. Mrs C says that she recognised that the process would not be completed overnight but bought the house expecting that, at the end of the five-year period, the estate would be a good place to live.
20. Mrs C says problems began when the developer went bankrupt and did not pay the money it had promised under the s.106 agreement. Later, in 2018, she says, the district council decided to spend money earmarked for road improvements in and around her estate on a major road project nearby which it saw as being of greater importance. She says this was at odds with the s.106 agreement.
21. In 2020, the district council received two other applications for development in the area. The Council, as highways authority, provided its views on road layout for both suggesting various conditions to allow the road network to cope with the increased usage that the new estates would cause.
22. Mrs C is a member of the residents’ committee on her estate. She says that, by 2020, when lockdown started and people spent more time at home, it was clear that there was no possibility that the works on the estate would be completed as she had expected by 2021. She says:
• There were hardly any footpaths and, those there were had deep cracks in them. She says disabled people, the elderly and mothers with buggies could not safely walk on them;
• There were no cycle paths;
• The road surfaces on the estate were poor which led local cars to damage their suspension on a daily basis;
• There was no suitable bus service as had been promised;
• Road A had been damaged by the heavy traffic which now travelled along it every day. It was also unsafe for the many children from the estate who had to travel down it to local schools. There was no lighting and no pavements;
• There was insufficient street lighting;
• The district council had spent the money earmarked for improving infrastructure on the estate on other projects, notably a link road from a major highway which would bring more traffic into the area and further damage Road A and other roadways; and
• The lack of sustainable transport infrastructure meant that children were unable to walk to school causing obesity and other childhood problems.
23. In January 2021, Mrs C wrote to the district council, the Council, the Department for Transport, her MP and various other bodies seeking to force some improvement in the problems she saw on the estate and on Road A.
24. The district council responded in January 2021 saying Mrs C seemed to have two main concerns:
1. The road surfaces on Road A and other roads in and around the estate – and this was the (County) Council’s responsibility, and
2. The lack of provision for pedestrians and cyclists which were matters for the district council.
25. The district council said that the estates had been designed with playgrounds and cycle paths integrated. It said that, as the area developed, the cycle paths would gradually connect as new developments were built and “in time…the planned facilities will build on those which are already available to improve the accessibility and choice of services available for residents”.
26. The Council responded to Mrs C in early February 2021. It said that the area was on the outer edge of a built-up area and “it is not often possible for one development or a number of small developments to deliver all the infrastructure that may be necessary or desirable”.
27. The Council said that, when the district council received a planning application for a new estate, the Council’s role was limited to commenting on the application and either supporting or objecting to the proposal. It could also suggest planning conditions to help the new development integrate into the wider highway network. But the details of the development were a matter for the district council.
28. It said it had passed Mrs C’s comments about potholes on the estate and on Road A to the Council’s highways department for action.
29. Mrs C complained to the Ombudsman about the Council.

Was there fault causing injustice?

Quality of road surfaces and footpaths

30. I am not in a position to say whether the roads and pavements around Mrs C’s house are ‘out of repair’. The Magistrates Court, however, has power to decide whether a highway is out of repair and to require councils to carry out works to improve the highway if they are in disrepair.
31. The law says we cannot normally investigate a complaint if someone can go to court to resolve it. For these reasons, I have not reached a decision as to whether the roads are ‘out of repair’.

Cycle paths

32. The complaint that Mrs C makes is not about the quality of existing cycle paths but about the absence of paths and the fact that they do not provide any genuine alternative to road transport by car. This is a planning matter and therefore a matter for the district council. The Council is not, therefore at fault.

Bus services

33. Bus stops were built on Mrs C’s estate during the construction phase. For five years, a bus route was funded by the developer under an agreement made during the planning stage. That service was not profitable for the provider without this funding and has now ceased. Mrs C says the bus service was on the wrong route and went to and from towns which most people on the estate do not often visit, rather than to the nearest town where services and facilities are situated.
34. The Council says it decided to divert the bus service it chose because it “brought the service much closer to new dwellings of [Road A and another road close to the estates]. It also sought to “provide access to major employment and large service centres as well as education facilities, retail and other public amenities”.
35. This was a decision made by professional Council officers having considered the evidence. Mrs C says this was the wrong decision. I cannot find fault on that basis and I cannot say that more people would have used the bus if a different choice had been made. I cannot therefore uphold this part of the complaint.
36. The funding for that service was subsidised by the developer for five years. That funding has now gone. The Council says it wants to bring a new bus service into the estates but says funding has not yet been secured and it has not yet decided what service it will be. It says it will make a decision based on the evidence.
37. However, the Council says that many of the residents of the new estates have become “committed to the private car”. This, it says, “brings additional challenges in delivering sustainable public transport services in such areas”.
38. We cannot find fault with a council for making a decision which a complainant disagrees with. If a professional council officer makes a decision based on facts and it is without procedural fault, we will not usually find fault with that decision. In this case, therefore, I cannot find the Council at fault for the choice of bus service.

Road A

39. Mrs C has various concerns about Road A. Firstly, she says that it is in a poor state of repair. The Council accepts that this is the case. It says it was intending to repair it during the 2019/20 financial year. However, it says, a developer has been building a development in the central section of the road and has agreed to repair the road once it is completed.
40. The Council therefore took a decision to delay the works on Road A until this development is completed so the developer can carry out works on the road.
41. This is a professional decision the Council took on the facts in front of it. The Ombudsman will not generally find fault with a Council when it has taken a professional decision, such as about priorities, without any administrative fault in the way the decision was made.
42. I have found no evidence of administrative errors in the way this decision was made so I have not found the Council at fault.
43. Secondly, Mrs C says the road has no speed limit and so is dangerous. The Council says that Road A currently has a 20mph speed limit whereas another service road, Road B is currently unrestricted but says that “as further development comes forward, this will see delivery of footway provision and speed reduction along Road B”.
44. This is, the evidence shows, a matter which the Council has under review. It has made evidence-based decisions using professional judgment. Consequently, as stated above, the Ombudsman will not, in the absence of administrative fault, find fault with a council for such decisions.

s.106 funding spent on other projects

45. The s.106 agreements were signed by the developer and the district council. The Council was not a party to the contracts so cannot be at fault for any breach. I do not, therefore, find fault.

Unsafe for school children

46. I am not able to say whether the route is safe. This is a matter for the Magistrates’ Court.

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Final decision

47. I have decided that the Council is not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman