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Mid Suffolk District Council (18 011 068)

Category : Planning > Other

Decision : Upheld

Decision date : 10 May 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council gave him wrong advice about his liability for a Community Infrastructure Levy. Mr X says that because of this, he lost the opportunity to apply for an exemption. There was fault in the way the Council responded to Mr X’s enquiry, which it agreed to remedy.

The complaint

  1. Mr X says the Council gave wrong advice when he asked about his liability for a Community Infrastructure Levy (CIL) payment for a development he intended to build.
  2. Mr X says because he was given incorrect advice, he began his development and so missed the opportunity to apply for a CIL exemption.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. I read the complaint and discussed it with Mr X’s solicitor. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave the Council, Mr X and his solicitor an opportunity to comment on an earlier draft of this decision. I revised my draft decision after receiving comments and gave both parties an opportunity to comment on the revised draft decision. I took account of the comments I received in response to the revised draft decision.

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What I found

  1. Not every change of use or development of land requires permission from councils acting as local planning authorities. Certain types of development are deemed to be approved if it is within criteria set out in regulations. This type of development is known as ‘permitted development’.
  2. The permitted development regulations require developers to notify the Council before certain types of work begins. This type of development is known as ‘prior-approval’ permitted development.
  3. Mr X owned a retail unit and wanted to convert it to a dwelling for him and his family. The permitted development regulations allow the change of use of a building from retail use to a dwelling house, providing the development satisfies criteria and conditions in the regulations.
  4. One of the criteria for this type of change is that only partial demolition of the original building is allowed. One of the conditions is that prior approval must be sought, so the Council can consider matters such as:
    • access to the highway;
    • contamination risks;
    • flood risk;
    • the impact on provision of services; and
    • the design and materials that will be used.
  5. Mr X sought prior approval to change the use of his building under permitted development regulations from a retail unit to a dwellinghouse. The Council approved his application in 2015.
  6. In April 2016, the Council approved a charging schedule under its CIL policy. Once the policy came into force on 11 April, any development might be liable to a CIL charge.
  7. Before the CIL charging schedule was adopted by the Council, it put information about liability on its website and wrote to local planning agents to warn them of the changes. The Council says its records show it wrote to the planning agent Mr X had used for his prior notification application.
  8. The Council says it advised Mr X’s agent that any development already approved could avoid CIL liability if the appropriate form (CIL Form 5) was completed and submitted before the CIL charging schedule came into force.
  9. Mr X phoned the Council in July 2016 (a few months after the CIL charging schedule came into force) to ask whether his new development would cause him to be liable under the new policy. The officer who answered the call saw that permission was granted and assumed it was full planning permission. She said that there was no liability and confirmed this advice in an email to Mr X.
  10. Mr X commenced development by carrying out demolition works in November 2016. He employed an independent Building Inspector who issued a completion notice, almost a year later, on 22 September 2017. The Inspector sent a copy of the completion certificate to the Council.
  11. The Council uses information such as completion certificates to check liability for CIL payments. It sent a CIL demand to Mr X in May 2018. Mr X contacted the Council to explain that he had already been told he was not liable for a CIL payment nearly two years earlier. The Council explained he was liable, because the key date for prior notification permitted development works is the date of commencement of works, not the date of the planning decision, as it is with a full planning application.
  12. Mr X employed a solicitor who complained his client had been misled by the Council in July 2016 and because of this the CIL charge was shown on the local land register, and delays in resolving the issue was making it impossible for Mr X to sell his house.
  13. In addition to a remedy for his complaint, Mr X would like the Council to pay for the cost of legal advice sought before he complained to the Ombudsman.

The Council’s response to the complaint

  1. The Council accepts it was at fault, because when it advised Mr X of his CIL liability, it had assumed his permission was for a full planning application, not a prior-notification permitted development application. It says if it had realised this, it would have advised Mr X he was liable for a CIL charge, but he could, at that time have applied for a ‘self-build’ CIL exemption by submitting an application (Form 7).
  2. The Council says there are three stages a self-builder must follow to qualify for CIL exemption. These are:
    • to submit a completed application form, before commencement;
    • provide information required by the regulations; and
    • to remain in the property as their sole and main residence for three years from the date of completion.
  3. The Council says the information required by the regulations is in three parts.
  4. Part 1 - The Council says Mr X would have needed to provide the following information within six months from the date of completion:
    • a Building Regulations completion certificate or compliance certificate;
    • title deeds of the property; and
    • a Council Tax Certificate.
  5. Part 2 - Mr X would have had to provide two of the following:
    • a utility bill;
    • a bank statement; or
    • evidence he was on the electoral roll.
  6. Part 3 – the Council would have required information to show the development was a ‘self-build’, which could have been either:
    • an approved HMRC VAT claim for refunds for self-builders;
    • a specialist self-build warranty, including latent defects insurance policy; or
    • details of a self-build mortgage loan.
  7. The Council says it rejects Mr X’s claim that the advice it gave caused delays in selling his home, because the CIL charge was lawfully applied and liability would have remained until and unless the criteria for a valid self-build exemption had been satisfied. This could not have been until September 2020. If Mr X had sold his house before this time, he would not qualify for a CIL exemption.

The Council’s offer to resolve the complaint

  1. During my investigation, the Council said it was prepared to settle the complaint. It said it could do this by giving Mr X an opportunity to demonstrate he would have qualified for a CIL self-build exemption under the regulations.
  2. To settle the complaint, the Council said it would:
    • apologise to Mr X for its error within one month from the date of my final decision;
    • allow Mr X six months from the date of my final decision on this complaint, to provide information that demonstrates he would have qualified for an exemption under the CIL self-build scheme;
    • not enforce payment for the CIL charge, providing Mr X continues to live in the property as his sole or main residence until 22 September 2020; and
    • make this offer in full and final settlement of Mr X’s complaint to the Ombudsman, including his earlier complaint, that he had been caused a loss because of delay.
  3. The Council says that it is not possible to remove the CIL liability charge from the Local Land Charge Register, unless the CIL money was first paid in full. If this happens, and Mr X managed to provide the information required in paragraph 21 above, it would then compensate Mr X for the money he had been obliged to pay.
  4. The Council says, if the money was not paid and the CIL charge remained on the Local Land Charge Register, it might be necessary for the parties to enter into a legal agreement to clarify its reasons for not seeking payment for outstanding CIL liability.
  5. Mr X’s solicitor says if the Council insists Mr X sign a legal agreement, he would expect it to meet all reasonable costs his client might face.

My findings

  1. I have seen no evidence to show that the Council was wrong to decide Mr X was liable for a CIL charge. To avoid liability entirely, Mr X would have needed to complete and submit the appropriate form (CIL Form 5) before the CIL charging schedule came into force. I have seen no evidence to suggest this happened.
  2. The Council was at fault because it gave incorrect advice to Mr X when he called in July 2016. The Council says that if it had realised the true situation, it would have advised Mr X that, although he was liable for a CIL payment, he might qualify for a self-build CIL exemption. Because of this, Mr X missed the opportunity to apply for an exemption before he began development of his new home. The Council should ensure Mr X is not disadvantaged because of this fault.
  3. Mr X asks that we recommend the Council pays his legal costs. We do not normally recommend repayment of professional fees. This is because we are a free and accessible service and it is not usually necessary to seek professional advice to bring a complaint to the Ombudsman. If we feel a professional opinion is necessary for our investigation, we can seek it ourselves. Mr X could have come to the Ombudsman before seeking advice from a solicitor, so I should not recommend the Council pays his costs.
  4. However, if the Council does insist that Mr X enters into a legal agreement to resolve his complaint, I would expect him to need legal advice on the terms of the agreement. In these circumstances, it should pay his reasonable legal costs to ensure he is not disadvantaged by the fault I have found here.

Agreed action

  1. The Council has agreed that Mr X will be given the opportunity to provide the information that would have been required to qualify for a CIL self-build exemption.
  2. If Mr X can provide this information and satisfies the other requirements, including the occupancy requirements, the Council will ensure he is not disadvantaged by its failure to inform him of the CIL self-build exemption scheme.
  3. If the Council requires Mr X to enter into a legal agreement, it will pay his reasonable legal costs for assistance necessary to agree the terms of that agreement.

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Final decision

  1. There was fault in the way the Council gave advice to Mr X about his CIL liability. I have completed my investigation because the Council has agreed action to remedy the injustice caused by the fault.
  2. Mr X may come back to us if, at the end of the process we have agreed, he feels he was disadvantaged by the fault we have found.

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Investigator's decision on behalf of the Ombudsman

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