Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against a developer who has failed to complete actions required in a Section 106 legal agreement. Mr X also complains the Council failed to require the developer to enter a bond under section 38 of the Highway Act. We have not seen enough evidence of fault in the Council’s actions. And we cannot achieve the outcome Mr X is seeking. Also we consider it reasonable to expect him to contact the Information Commissioner if he believes the Council is withholding information that he has requested.

The complaint

1. Mr X complains the Council has failed to take enforcement action against the developer who built his home who is in breach of planning permission by failing to complete the road to the required standards. And for failing to complete the requirements confirmed in a section 106 legal agreement.
2. The developer’s solicitor has advised Mr X that he and the other residents on the road are now the owners of the road and are responsible for it and for the open spaces on the development.
3. Mr X also complains the Council has failed to provide information about a bond under section 38 of the Highway Act 1980.
4. He wants the Council to complete the work specified in the section 106 agreement.

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The Ombudsman’s role and powers

5. 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, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X bought a house on a relatively new development.
10. The Council confirms it opened planning enforcement cases in 2022 following reports of failure to comply with planning conditions. It served breach of condition notices on the developer in 2023. It required the developer to surface and finish the estate road according to the approved plans. About three months later the Council invited the developer to attend an interview under caution. The developer did not respond.
11. Later that year the Council issued another breach of condition notice for the failure of the developer to comply with conditions on soft landscaping as stated in a section 106 legal agreement.
12. I understand Mr X is concerned about the time taken to consider the breaches. However, the Council confirms that the works are not time sensitive nor time critical and it does not consider the breaches are causing significant harm in planning terms. It says there are no safety or public health issues and no harm to a listed building. Therefore it has decided it is not expedient to take action against the developer. Having investigated the breaches, served notices and taken legal advice, this is a decision the Council is entitled to take.
13. Mr X says the open land subject to the section 106 agreement has been transferred to a resident’s management company. Although the obligations under a section 106 agreement run with the land, the Council has confirmed it will not take enforcement action against the shareholders of the resident’s management company.
14. Mr X is also concerned about the cost of finishing the road to the standard required by the planning permission.
15. There is no legal requirement for councils to adopt an unfinished road, or to bring it up to adoptable standard, unless a developer makes certain agreements and has paid financial bonds to the council. However, councils in England and Wales can:
• make a voluntary advance agreement with a developer to adopt a prospective road, once built, under section 38 of the Highways Act 1980 (potentially including a bond); or
• require a developer to pay a bond (which can be used to make up roads if a developer defaults on the building work) under sections 205 to 218 of the 1980 Act.

16. If there is no section 38 agreement or bond in place, a council can bring a road up to adoptable standard in agreement with the people who own property fronting (the frontages).
17. I understand Mr X says the Council is at fault because it should have required the developer to enter a section 38 agreement. However, it cannot force a developer to do so. Also, an agreement under section 38 of the Highways Act 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 action is at its discretion.
18. When buying a property, the solicitors acting for the buyer carry out a local authority search. This will confirm whether a section 38 agreement is in place. It was for Mr X’s solicitor to advise him of the risks of purchasing a property without a section 38 agreement in place before he bought his home.
19. Mr X wants the Council to complete the road to the standard required by the planning permission and other actions stated in the section 106 agreement. However, it is not responsible for these actions and we cannot require it to do so.
20. Mr X also complains the council has failed to provide information. The Information Commissioner deals with complaints about the failure of public authorities to comply with the Freedom of Information Act and the Environmental Information Regulations. I consider it reasonable to expect Mr X to complain about this matter to the Information Commissioner’s office.

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Final decision

21. We will not investigate Mr X’s complaint because:
• There is no legal requirement for the council to require a developer to pay a bond under section 38 of the Highway Act 1980.
• The Council is not responsible for completing the actions required by the section 106 agreement, which include completing the road to a specific standard. And we cannot require it to do so. Therefore we cannot achieve the outcome Mr X is seeking.
• It is reasonable to expect Mr X to complain to the ICO if he believes the Council is withholding information.

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Investigator's decision on behalf of the Ombudsman