Summary: There is no evidence of fault by the Council. The planning legal agreement says the developer ‘may elect to transfer’ public open space to the Council. The Council has reached a decision not to use the dispute resolution process over the space which Mr X wants it to do. The owner of the land is responsible for repairs to the area.

The complaint

1. The complainant, who I shall call Mr X, complains that there is a risk to public safety as the Council has not invoked the dispute resolution process in a Section 106 Agreement for some land outside his home. A section 106 Agreement is a legally binding agreement or “planning obligation” between a local planning authority and a land or property owner. 
2. Mr X says the Council and the developer have reached an impasse over a piece of public open space owed by the developer. He wants the Council to use a dispute resolution process so the land could be adopted and maintained by the Council.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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What I have and have not investigated

6. Mr X has been aware of the matters he complains about since 2021. We expect a complainant to come to us within 12 months to complain about something a Council has done. Mr X first complained to the Council in 2019 about related matters but did not put in this complaint to the Ombudsman until July 2024. I do not intend to exercise discretion to investigate matters prior to July 2023 as Mr X could have complained earlier if he wanted to pursue complaints about earlier events.

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How I considered this complaint

7. I read the papers put in by Mr X.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. Mr X and the organisation 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

10. The planning permission for Mr X’s house included a landscaped public open space in front of it. This space is currently owned by the developer but all the houses on the development are now sold.
11. The Council says it issued a completion notice in 2018. This certified that works to the public open space had been completed and the final house in the development could be sold.
12. There is a Section 106 legal agreement between the developer and the Council. This says that ‘following the issue of the completion notice, the developer may elect to transfer to the Council all or any part of the public open space for £1. Once the space has been transferred to the Council…….the owner shall no longer have any liability for the public open space’.
13. Mr X says the Council has been emailing the developer about works required to bring the open space up to standard, so it could be adopted. Mr X complains the Council has not asked for the dispute resolution process in the Section 106 agreement to start, which he feels would be the quicker solution to the problem.
14. The Council has said that ‘there is nothing in the Section 106 agreement that requires the Council to take on the Public Open Space. If the developer is not willing to get the open space to a condition where the Council is comfortable taking it on (with a commuted sum for future maintenance), then the Council have no enforcement powers to require the land to be put in an acceptable state’.
15. Mr X is of the view that the interaction of two linked legal documents means the Council should take on the public open space. A decision on points of law, such as the interaction of covenants or legal documents are for the courts to determine and the Ombudsman is not able to make a judgement on this. Mr X may need to take private legal advice on the contract between him and the developer. I cannot say the Council has been at fault. It has reached a view that that there is nothing in the agreement that requires it to take on the public open space and does not intend to initiate a dispute resolution process. This is a decision it is entitled to make, although I accept Mr X disagrees with it.
16. Mr X mentions the risk to the public from broken steps, peeling paint on railings and a lack of lighting at night. Mr X, as a resident, wants the area to be maintained.
17. The area is owned by the developer and so at the moment, it is the developer’s responsibility to maintain it. The Council does not have responsibility for maintenance just because it is a space open to the public. So, there is no further investigation possible by the Ombudsman, as the Council does not have responsibility for the space which is owned by a private company and the Ombudsman cannot investigate the private company. Mr X can report the damaged areas to the developer and follow their complaints procedure.

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Final decision

18. I have completed my investigation of this complaint. This complaint is not upheld, as I have found no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman