Summary: We will not investigate this complaint about the service provided by the Council when agreeing highways works as much of the complaint is made late and there are not good reasons to investigate now. In respect of the remainder of the complaint, we cannot achieve the outcome the complainant seeks.

The complaint

1. Mr X complains about the time it took for the Council to agree a section 278 agreement. Mr X complains the Council’s procedure is overly complicated and that officers consistently took too long to reply. Mr X is unhappy that the highways department itself provided the Council’s stage one complaint response. Mr X wants a refund of the fees of around £24000 that he paid to the Council.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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 we cannot achieve the outcome someone wants, or there is no worthwhile outcome achievable by our investigation (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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Background

8. A section 278 agreement (or s278) is a section of the Highways Act 1980 that allows developers to enter into a legal agreement with a Highway Authority (HA) to make permanent alterations or improvements to a public highway, as part of a planning approval. Developers have to pay HAs for s278 agreements. Mr X paid the Council around £17000 in late 2022.
9. In May 2024, Mr X complained to the Council about the length of time it was taking to agree the works; about delay in officer responses and about the complexity of the Council’s procedures. Mr X also complained about the further fee of around £6000 he had been charged. Mr X wanted a full refund of the fees he had paid as he did not consider the level of service he had received reflected the fees charged.
10. The Council provided its stage one complaint response in June 2024.
11. In August 2024, Mr X escalated his complaint referring to specific times when he considered there to have been delay by the Council. Most of these events took place in 2023 with one alleged period of delay of around nine weeks from February 2024 to April 2024.
12. In its complaint responses, the Council addressed the points Mr X raised in respect of the alleged periods of delay. In respect of 2024, the Council acknowledged there was delay from February to April and explained the reason for this which it said was due to resourcing issues. It advised Mr X that it did not consider this delay to be significant given the overall timeframe of the process.
13. The Council explained that the additional fee was for the provision of a Traffic Regulation Order (TRO) which was required due to an updated element of the design. As such, the cost of this had not been included in the original s278 fee estimate.
14. The Council explained about its complaint handling process and that it considered the stage one response was appropriately handled given that the manager who provided the response was not the case officer or decision maker in respect of the S278 negotiations.
15. In respect of the complexity of its procedures, the Council said it is for each HA to decide what process to adopt in respect of s278 applications. The Council said that the need to raise queries with a developer is to ensure quality of design and that ultimately it would be the HA and the public purse that would bear the burden of poor-quality design and installation. The Council also said it provides guidance to developers in the form of its Design Guide to limit the number of design submissions required and so limit the number of officer queries arising from design submissions.
16. Mr X complained to us in mid-November 2024.

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My assessment

17. Mr X’s complaint about delay in 2023 is made late as his complaint to us was made more than 12 months after he knew about these problems. It is reasonable to expect Mr X to have come to us sooner and within a year, and as such, I do not consider we should investigate this late complaint now.
18. Mr X makes specific reference to delay between February and May 2024. The Council acknowledged this did take place, due to resourcing issues. While this looks to be fault, I do not consider we could achieve any meaningful remedy for Mr X in respect of this given Mr X seeks a full refund of the fees he paid. We could not recommend this for a delay of around two months.
19. The Council has explained the additional charge. That Mr X is unhappy with this does not constitute fault and does not provide grounds for us to investigate.
20. There is insufficient evidence of fault in the way the Council handled Mr X’s complaint. The Council’s complaint procedure explains that a stage one complaint will be dealt with by an appropriate officer within the service the complaint relates to.
21. It is for the Council to determine how to process s278 applications and for planning officers to determine what technical information is required, in their professional judgement, to ensure quality of design. I do not consider Mr X has supplied evidence of fault by the Council in this regard, but merely expressed his view that he would have preferred the process to have been less complicated.
22. For these reasons, we will not investigate this complaint.

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Final decision

23. We will not investigate Mr X’s complaint because part is made late. There is also insufficient evidence of fault in relation to other aspects and we cannot achieve any meaningful outcome by our further involvement.

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Investigator's decision on behalf of the Ombudsman