The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s refusal to ensure compliance with the terms of a Section 106 planning obligation. This is because the Council’s actions have not caused Mr X significant injustice. We cannot consider the impact of its actions on the Parish Council- a signatory to the Section 106 agreement- and the law does not allow us to investigate the Council’s use of public money to fund legal advice relating to the issue.
The complaint
The complainant, Mr X, complains the Council failed to comply with the terms of a Section 106 planning obligation agreed with the Parish Council, landowners and a developer. He says the developer intends to breach the terms of the agreement and the Parish Council have spent money seeking legal advice on the issue. He also complains the Council has spent public money obtaining its own legal advice. He believes the Council is bullying the Parish Council and should reimburse its legal fees.
Mr X is also unhappy with the Council’s handling of his complaint.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended) We cannot investigate complaints from public bodies. (Local Government Act 1974, section 27(1)(a), as amended)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
Mr X was involved in the creation of the Section 106 agreement as a volunteer for the Parish Council. Although he is not complaining formally on behalf of the Parish Council, the injustice he claims is to the Parish Council rather than to him personally. The law does not allow us to investigate complaints from public bodies such as parish councils and it therefore follows that we could not recommend a remedy for injustice suffered by the Parish Council.
While Mr X raises concerns about the impact on local residents as a whole through the use of public funds this is not an issue we can consider. This is because it affects “all or most” of the people in the Council’s area and it is not therefore subject to investigation as set out at Paragraph 5 above.
There is in any event no personal injustice to any local resident from the actions complained about at present as there has been no breach of the Section 106 agreement or the planning permission granted by the Council. Mr X complains the Council has failed to take action to ensure the developer does not proceed with an intention to carry out a breach but this has not yet happened. The Council has made clear that the developer would have to apply to vary the agreement and the permission and if they do so Mr X and the Parish Council would have the opportunity to object.
Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate this complaint. This is because the Council’s actions have not caused Mr X significant personal injustice.
Investigator's decision on behalf of the Ombudsman