This fact sheet is aimed primarily at people who have concerns about the way a section 106 agreement (or planning obligation) has been considered or enforced. It provides some guidance for people who may be considering making a complaint to the Ombudsman.
What are section 106 agreements?
New development can place extra burdens on the existing infrastructure and resources in the area (such as volume of traffic). It can also deal with existing problems in an area (such as a lack of affordable housing) and allow opportunities to be realised (such as archaeological study). Councils may require developers to make some reasonable financial or practical contribution to the community to address these types of issues. For example, a developer seeking planning permission to build a new private sector housing estate may be willing to contribute to the cost of more facilities at a local school and provide affordable housing.
This is usually achieved by making planning permission conditional on the developer first entering into an agreement or obligation, more commonly referred to as a 'section 106 agreement'. Once a developer signs an agreement, it is a legally binding contract. The terms of the agreement can be enforced by either party against the other.
Can the Ombudsman investigate complaints about them?
We will not usually investigate complaints from developers, as they will be deemed to have entered into the agreement freely.
But we can look at complaints from members of the public if, for example, they believe an agreement has not been enforced.
How do I complain?
You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.
Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.
You should make your complaint to us within 12 months of realising that the council has done something wrong.
If you consider my complaint what will the Ombudsman look for?
We consider whether the council has done something wrong in the way it considered or imposed a section106 agreement which has caused you problems. This might happen in the following situations:
- the council did not properly consider whether a planning obligation should be required
- the council failed to ensure the developer provided the facilities agreed, so residents did not have the benefit intended for them
- the council delayed in enforcing a section 106 agreement to provide facilities
- the section 106 agreement was poorly drafted, and did not achieve the intended result, or
- the council delayed in drafting the section 106 agreement.
We would not usually investigate a complaint just because you believe the council has not got good value from the agreement. To consider a complaint of this nature we would need to see that there was some specific personal injustice you suffered, over and above that experienced by other residents of the area.
What happens if the Ombudsman finds the council was at fault?
Where it has been at fault, and you have suffered as a result, we can recommend that the council takes action to put the matter right. Depending on what the complaint is about, we may ask it to:
- ensure the developer honours the agreement within a reasonable time frame, or
- if the council cannot do this, we might recommend that the council make provision instead of the developer doing so.
But we cannot dictate what the council should require the developer to do, nor can we compel either party to act in a particular way.
Examples of some complaints we have considered
The council felt the children’s play equipment would be too close to houses, so it did not require it to be provided. As the developer entered discussions with the parish council to resolve its obligations the council decided not to take enforcement action. The council’s failure to monitor compliance was fault. However, its discretionary decision not to take formal enforcement action was one it was entitled to take.
Other sources of information
You can find guidance for local authorities on section 106 agreements on the Government's website.
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.
The Local Government and Social Care Ombudsman provides a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result the Ombudsman aims to get it put right by recommending a suitable remedy.