Summary: X complained about the Council’s failure to require that a developer create a footpath to make it suitable for walkers and cyclists. We found fault in the way the Council acted that resulted in it losing planning control of the path. We did not make any recommendations because the Council has already accepted the fault and made satisfactory improvements to its service.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to require a developer to carry out work to construct a pedestrian path and cycleway.
3. X said they walk on the path and it is often muddy, and not easily accessible in places.

Back to top

The Ombudsman’s role and powers

4. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I also discussed what happened with a planning enforcement officer and one of the Council’s solicitors.
6. I gave the Council and X an opportunity to comment a draft of this decision and I took account of the comments I received.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it.
12. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

14. The Council approved a development subject to a condition requiring the developer to sign a legally binding section 106 agreement. The agreement included obligations which the Council and developer had agreed to be legally binding. Amongst other things, the agreement required the developer to:
• not begin development until specification for the path had been approved by the Council; and
• not allow more than half the development to be occupied until works on the path had been completed to the Council’s reasonable satisfaction.
15. The development was built and occupied without complying with either of these requirements.
16. A planning enforcement officer explained that:
• the path was available and there had been some improvements to it, but a large section of the path remained in a poor condition;
• the Council had received legal advice that it could not enforce those parts of the agreement that required improvements to create a footpath and cycleway.
17. A Council solicitor explained that:
• X had suggested the path should be constructed to the specification to a certain plan from the Council’s application file, but neither this plan or any other had been approved under the section 106 obligation process;
• as they understood the legal advice previously provided, and by their own reading of the agreement, the obligations relating to the path could not be enforced because the ‘trigger’ points (beginning development work and allowing half the development to be occupied) had long since passed;
• the Council had missed the opportunity to enforce these obligations, but this was unlikely to happen again because the Council now employs a section 106 officer, whose role includes keeping lists of obligations and ensuring compliance.
18. I checked the Council’s website and found policy documents and flow charts that show how the Council ensures compliance with section 106 agreements. The new process includes monitoring to ensure trigger points are not missed.
19. I read the Council’s response to X’s complaint. It accepts it was at fault and it apologised for failing to properly control the site using its planning powers.

My findings

20. The Council intended to ensure the developer carried out works to create a path for walkers and cyclists. Though there have been some improvements, the Council has no agreed specification under its section 106 agreement and cannot require further work because it has lost planning control. This happened because it allowed section 106 trigger points to pass without requiring compliance with them. This is fault.
21. When we find fault we need to decide whether the individual who has complained to us was caused a significant personal injustice.
22. While X uses the path and is disappointed it was not significantly improved, the section 106 benefits were meant to provide benefits to new residents and the public at large. Because of this, I cannot say the fault I found caused a significant personal injustice to X. The Council has already accepted it was at fault and has apologised for its mistake, so it is not necessary for me to recommend it does more for X.
23. Even though I found no personal injustice to X, I can recommend service improvements to avoid recurrence of the same fault in future. I have looked at the Council’s current section 106 arrangements on its website and am satisfied that no further recommendations are necessary.

Back to top

Final decision

24. I found fault in the way the Council’s decision was made, but the fault did not cause an injustice to X. The Council has already made changes to its working practices and so I have not recommended further service improvements. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman