Elmbridge Borough Council (18 003 214)

Category : Planning > Other

Decision : Upheld

Decision date : 01 Oct 2018

The Ombudsman's final decision:

Summary: Mr B complains there has been fault by the Council in how it dealt with charges relating to a planning application he submitted. While there was an error regarding CIL liability in the officer report for Mr B’s application, the correct position had been made clear in the Decision Notice and we will not pursue the complaint any further.

The complaint

  1. Mr B complains there has been fault by the Council in how it dealt with the Community Infrastructure Levy (CIL) and the Affordable Housing Contribution (AHC) charges relating to a planning application he submitted. He relied on an error in the officer report which said there would be no CIL liability and he questions whether he should have to pay the AHC.

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What I have investigated

  1. I have investigated the part of Mr B’s complaint which concerns CIL liability. The last paragraph of this statement explains why I have not looked at the AHC issue.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
  2. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about delay, a decision to refuse permission, conditions placed on a planning permission and a planning enforcement notice
  3. If we are satisfied with a council’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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How I considered this complaint

  1. In considering the complaint I spoke to Mr B and reviewed the information he and the Council provided. Both Mr B and the Council were given the opportunity to comment on my draft decision and I considered the comments Mr B made.

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What I found

  1. CIL is a charge that local authorities can set on new development to raise funds to help fund infrastructure, facilities and services - such as schools or transport improvements - which are needed to support new homes and businesses in their areas.
  2. An AHC is a calculated contribution some housing developers will have to make to a local authority on receiving planning permission towards the provision of affordable housing in the authority’s district.

Events

  1. In 2015 Mr B submitted a planning application for a housing development which would extend an existing property and add a new dwelling. With his application, he also submitted the results of the Council’s Liability Calculation Tool. This Tool is available on the Council’s website and gives applicants an estimate of their potential AHC and CIL development liabilities for their proposal. The Council has explained all the totals on the Tool are headed “indicative” because the figures are inserted by the applicant and cannot be checked by the Council prior to submission of the application.
  2. Mr B inserted into the Tool a square metre figure for the demolition and reuse of existing floor space and these figures produced a nil CIL liability figure.
  3. In accordance with normal procedures, the Council secures AHC liability through a Unilateral Undertaking and CIL liabilities through the issue of Liability of Demand Notices. Mr B signed a Unilateral Undertaking which set out his AHC liability. The Liability Calculation Tool does not form part of the Unilateral Undertaking.
  4. In error, the January 2016 Council officer report for Mr B’s application wrongly stated there would be no CIL liability. However, the Decision Notice, issued the same day as the report was made publicly available, stated the development was subject to a CIL liability for which a Liability Notice would be issued as soon as possible after the grant of permission.
  5. A few days later the Council sent Mr B’s agent the CIL Liability Notice detailing a CIL charge of over £14,000. The notice made clear that payment would be due at the commencement of the development and that the person liable would have to submit a Commencement Notice to the Council when starting the development. It explained if the correct procedure was followed, the CIL could be paid in instalments but if the Commencement Notice was not submitted at the relevant time the full amount would be due on the day the Council deemed the development to have started. Mr B started the development but did not submit the Commencement Notice.
  6. In January 2018, having become aware development had started, the Council sent Mr B a Demand Notice for the outstanding CIL, using January 2017 as the deemed commencement date. The notice told Mr B that the relevant regulations required the Council to add late payment interest to his CIL payment. Later, having obtained Mr B’s email address, the Council also emailed him the CIL invoice. It acknowledged that there had been an error in the officer report but that the over-riding document was the Decision Notice which confirmed CIL liability.
  7. Mr B complained to the Council that he should not have to pay the late payment interest because of the Council’s mistake in the officer report and because he had been unaware the CIL payment was due. He said he had not received the Decision Notice or the CIL Liability Notice which followed it.
  8. The Council addressed his complaint at the three stages of its complaints procedure. It accepted the officer report had wrongly stated there would be no CIL liability but concluded he was liable and confirmed interest on late payment would be applied. It set out its position in some detail, explaining that the Decision Notice was the relevant legal document, and not the officer report, that he was aware the development would attract a CIL contribution and that a CIL Commencement Notice had been required prior to the commencement of development and had not been provided.

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Analysis

  1. In his complaint to the Ombudsman Mr B has said he did his financial planning based on the original agreement that there would be no CIL. However, the Unilateral Undertaking recorded the AHC. The Liability Calculation Tool which showed a nil CIL liability was produced on the basis of figures inputted by Mr B and did not form part of the Undertaking. The officer report was not an agreement or contract but a recommendation which may or may not have been followed. The Decision Notice is the legally binding document and this correctly set out the position with regard to the CIL. As the report and the decision came out the same day, the error in the report could not have significantly disadvantaged him.
  2. Mr B says that before his application had been determined the case officer told him there would be no CIL to pay and he relied on this when he agreed to the AHC. The error in the officer report which states no CIL would be payable is at odds with the rest of the report which is clear the application includes a new building. As this was the case, and there was a new building, there could be no CIL exemption relating to the limited amount of floorspace of the development as this exemption only applies when there are no new buildings involved
  3. Mr B says he did not receive the Decision Notice or the Council’s February 2016 CIL Liability Notice. The Council reasonably sent the letter to his agent, who acted for him, and to the address given on the planning application form. The Council is not responsible if the agent did not pass this on to Mr B. The decision was available online and Mr B and/or his agent would have had to have checked what the decision was before knowing whether the development could go ahead and under what conditions and it was here CIL liability was noted.

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Final decision

  1. While there was an error regarding CIL liability in the officer report for Mr B’s application, the correct position was made clear in the Decision Notice and in all subsequent communication and we will not pursue the complaint any further.

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Parts of the complaint that I did not investigate

  1. The restriction highlighted at paragraph 3 applies to the part of Mr B’s complaint which concerns the AHC he had to pay. He knew of the charge at the time permission was granted and he could have appealed against it to the Planning Inspector had he wanted to.

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Investigator's decision on behalf of the Ombudsman

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