The Ombudsman's final decision:
Summary: The Ombudsman found no fault on Mr L’s complaint about its communication with him about the Community Infrastructure Levy, his invalid Commencement Notice, or giving misleading information to him, his MP, and councillors. Mr L’s complaints about using the wrong guidance when applying conditions to planning consent, failing to refund the fee paid for his discharge of condition application, and adding a surcharge are all outside of the Ombudsman’s jurisdiction.
- Mr L complains about the way the Council dealt with planning conditions on consent it granted for a new building and its failure to:
- Apply the correct guidance when imposing the conditions;
- Properly communicate with him throughout the whole planning process about the Community Information Levy (CIL);
- Tell him that his Commencement Notice was invalid;
- Refund the fee paid for his discharge of condition application when the planning inspector decided the conditions listed needed removing; and
- Attempted to mislead his MP and councillors.
- As a result, he suffered financially and would like the return of all fees and the surcharge paid.
What I have investigated
- I have not investigated complaints a) and d), for the reasons I explain in the final paragraph in this final decision.
The Ombudsman’s role and powers
- 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)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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))
Community Infrastructure Levy (CIL)
- The CIL allows local planning authorities to raise funds from development in their area to provide infrastructure needed because of the development. (The Community Infrastructure Levy Regulations 2010, as amended) The amount payable is calculated per square metre for qualifying developments. The rates are set by the charging authority (the Council).
- The CIL process is as follows:
- All planning applications are assessed to see if the development is liable to a CIL;
- Where a CIL application is approved, the Council issues a Liability Notice to any person who has assumed liability to pay the CIL;
- Once planning consent it granted, a person needs to assume liability for the CIL. The notice needs sending by anyone intending to assume liability identified in the Liability Notice up to the day before the development work starts. A person cannot assume liability to pay after works start;
- If no Assumption of Liability form is received before works start, liability falls on the owner of the land or those with a material interest in it. Any changes of circumstances need a Transfer of Assumed Liability form completing;
- Before starting works, the person who assumed liability to pay must send a completed Commencement Notice no later than the day before the day works are to start. If this is not received, or if the Council believes works were started before the intended commencement date, it decides a ‘deemed commencement date’: and
- When it receives a valid Commencement Notice, the Council issues a Demand Notice to the person who assumed liability to pay. If nobody assumed liability before the Demand Notice, liability defaults to the land owner.
How I considered this complaint
- I considered all the information provided by Mr L, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr L and the Council. I considered their responses.
What I found
- The following are key events:
- January 2015: Mr L’s agent sent a CIL form for a previous planning application for the same site.
- May 2017: In its response to Mr L’s complaint, the Council noted his agent completed the CIL form in May at the time of sending the planning application. I have seen this form which referred to guidance that needed reading before it was completed. The Council could not give an exact amount payable at the time until consent was given as changes to an application might alter its calculation.
Mr L replied saying he had ‘reviewed’ the application form submitted and thought the reference to the CIL questionnaire at the bottom was about materials.
- August: Mr L received planning consent. After granting consent, the Council sent Mr L and his agent a form to complete (Form 1: Assumption of Liability). This was because before a development starts, the person responsible for the development must assume liability. The letter sent with it said the form was to show who would pay the CIL. If the form was not completed and returned within 14 days of the date of the letter enclosing it, CIL liability would default to the landowner and surcharges may apply.
Mr L argued his email inbox contains thousands of emails which he does not view regularly. This means he remained unaware of the email the Council sent with the form. He argued his family also used his email address. He claimed his agent ceased his role in August and in October, Mr L instructed another agent.
- November: He sold the land to a limited company. Mr L is a director of that company. About a week later, work on the site started. The Council issued a Liability Notice. Surcharges are payable following a disqualifying event, such as starting the development without first assuming liability and starting works but failing to notify the Council.
- December: The Council sent him a CIL Notice demanding payment of £8,895.75. Mr L claimed this was the first time he was aware of the CIL and he had, therefore, not budgeted for it. He queried whether the Council could issue it so late.
- January 2018: The Council sent Mr L a Demand Notice which included a surcharge.
- Mr L disputed the Council’s claim that information about CILs was on its website since 2015. The Council noted the webpage was last updated on 2 March 2016 which means all the information about CILs was available to Mr L to view at the time he sent his application. In response to his complaint, the Council would consider providing further information about the CIL when issuing decision notices.
- Despite paying for a pre-application service, Mr L claimed he was not told about the CIL which the Council accepts. Following a review, applicants are now routinely notified.
- I make the following findings on this complaint:
- The planning application Mr L’s agent sent to the Council confirmed additional information was sent with it. This included drawings, plans, and the ‘CIL questionnaire’.
- Mr L’s agent completed the Council’s ‘Community Infrastructure Levy (CIL)- Determining whether a development may be CIL liable Planning Application Additional Information Requirement form’. This is dated 22 May 2017 and was the questionnaire referred to in the planning application;
- The CIL form gave a link to guidance notes which it said should be read before completing the form.
- I am satisfied information about the CIL was given by the Council to Mr L’s agent. While Mr L disputed the term ‘agent’, contact details were provided on the planning and CIL form for the agent. There was evidence of the agent acting in that role on the planning file. The agent was aware of the CIL which is evidenced both by the reference in the planning application submitted and the completion and returning of the CIL form. I am satisfied the agent was acting on behalf of Mr L. The Council was not at fault for dealing only with the agent as the application form gave the contact details for the agent. Any failing to inform Mr L about the CIL was not a failing by the Council.
- Mr L complained he did not receive the Assumption of Liability form. This was sent by email to Mr L and his agent on 17 October 2017 before works on the development began. I have seen a copy of this email.
- The Council’s website for this planning application shows the agent emailed the Council near the end of October shortly before it granted consent. The agent copied Mr L in to it. The agent still acted on behalf of Mr L at this point. Mr L was not using new agents in October as claimed. I say this because the agent emailing the Council was the same one he used when sending the application. This helps explain why the Council emailed both Mr L and the agent a few weeks earlier with the Assumption of Liability form.
- In his email to the Council of 24 December, Mr L said he had checked his email account and found the email the Council sent. I do not accept his argument that because he failed to see it, the Council failed to notify him. The Council sent the email to his agent and to Mr L. Mr L accepted the email was in his inbox. The fact Mr L failed to check this account was not the Council’s fault. I also note he used the email account for corresponding with the Council about his complaint and gave it on the acknowledgement forms sent in December.
- I am satisfied the Council brought the Assessment of Liability form to Mr L’s attention directly and through his agent. I found no fault on this complaint.
- Mr L returned the Notice of Commencement to the Council in December. He deleted part of the declaration saying he acknowledged failure to notify the Council of the intended date of commencement of works may result in the demand of a surcharge. He wrote on the form that he only received the form 3 weeks after works began. He also declared the company he sold the land to now owned the site.
- In January 2018, the Council told Mr L this was not a valid notice because of the deletions. Its letter explained it was a prescribed document and as Mr L changed it, the Council could not accept it. Putting aside his argument for the moment about validity, the Council sent the Notice after works had already started. The Council also told him it could now proceed to issue a Demand Notice as it was satisfied when works began. The letter sent him a copy of the Demand Notice.
- I found no fault on this complaint. The letter the Council sent him explained why the Notice of Commencement was incorrectly completed and it was aware of works starting in November 2017. It was not fault for the Council to reject the form with his deletions. The Notice is valid if it complies with legal requirements. (regulation 67(8), The Community Infrastructure Levy Regulations 2010, as amended)
- Mr L claimed the Council failed to explain why the planning department did not provide his MP and councillors with a full set of correspondence about his case. He was also unhappy with the account given in its letter of 18 January which gave ‘a misleading impression to the Councillors and the Director of Planning’.
- In his response to my draft decision, Mr L explained the misrepresentations included the Council not informing councillors at a meeting of the correct position of the law. The information he provided showed this was on the issue of the Council applying surcharges.
- The Council accepted the last part of its letter might have been a little confusing or contradictory. This is because it said it could issue a Demand Notice when it received a valid Commencement Notice but, served Mr L with the Notice.
- It also accepted there were the following errors in the letter:
- It referred to an ‘assumption of liability notice’ instead of a Liability Notice; and
- The commencement date of works was given as 12 November when it was 14 November according to Mr L. The Council noted its Building Control officers recorded the date as 20 November.
- The Council said it sent councillors and the MP copies of the complaint correspondence. They had the same information available to them as the Council.
- I found no fault on this complaint. While I accept the letter to Mr L contained a few errors, I am satisfied these were too minor and too insignificant to amount to fault despite the confusing and contradictory statement about the Commencement Notice and Demand Notice.
- I consider any complaint about the accuracy of any information given to councillors about the surcharge cannot be separated from the right he had to appeal the decision to apply a surcharge in the first place.
- I found no fault on Mr L’s complaint against the Council.
Parts of the complaint that I did not investigate
- I did not investigate the following complaints:
Investigator's decision on behalf of the Ombudsman