Summary: We will not investigate this complaint about the Council’s handling of planning enforcement and community infrastructure levy issues relating to the complainant’s development. It is reasonable to expect the complainant to have contacted us sooner about issues which arose more than 12 months ago, and there is not enough evidence of fault by the Council.

The complaint

1. Mr X complains the Council’s building control team failed to identify that his development was not being built in accordance with the planning permission. He also complains the Council decided to take planning enforcement action against him, instead of allowing him to submit either a minor amendment application, or a certificate of lawfulness application after the deadline for enforcement action had expired.
2. Mr X says the Council’s actions have resulted in him no longer being eligible for the Community Infrastructure Levy (CIL) self-build exemption.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can 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. So, we do not start an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. In that regard, we can 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)
6. And 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)

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How I considered this complaint

7. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• Information about the planning applications and appeals relating to the site, available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

8. The Ombudsman will not start an investigation into this complaint for the following reasons.
9. The 12-month time restriction detailed in paragraph 6 above appears to apply to any events or issues which arose in 2022. For example, I understand Mr X was copied into correspondence between the Council and his agent in early-2022, where the Council explained it was not possible to claim the self-build CIL exemption for a retrospective planning permission. The enforcement notice was also then issued in April 2022, yet Mr X did not contact the Ombudsman until February 2024. I see no good reasons why Mr X did not complain to us sooner if he was unhappy about these matters, so we will not exercise discretion to consider them now.
10. And even if this time restriction did not apply, there is not enough evidence of fault by the Council to justify starting an investigation. In reaching this view I am mindful that:
• It is not the responsibility of building control to check if a building is being constructed in accordance with the related planning permission; rather, this is ultimately the responsibility of the person implementing that permission.
• The Council’s planning enforcement team was entitled to decide what planning enforcement action, if any, it was expedient to pursue in this case. As such, it was entitled to request the submission of a retrospective application and, when this was not forthcoming, to issue an enforcement notice. I have seen no evidence of fault in the way the Council reached these decisions, so cannot question whether they were right or wrong, even if Mr X thinks other options should have been chosen.
• The Council says the CIL notices which have been issued to Mr X include guidance and information on the CIL process, links to the Council’s webpage for further guidance, and links to the planning portal to access the related CIL forms and additional information. The information is also set out on the forms Mr X submitted and signed.
• The Council issued Mr X with a CIL liability notice in mid-2023, after the Planning Inspectorate allowed his appeal against the related enforcement notice. This set out how much he X owed. The Stage 1 complaint response explains the Council had exercised its discretion not to add any surcharges up to that point, and that any late‑payment charges could only be calculated once the CIL amount is paid.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable to expect him to have contacted us sooner about issues which arose more than 12 months ago, and there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman