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Elmbridge Borough Council (18 012 315)

Category : Planning > Other

Decision : Closed after initial enquiries

Decision date : 26 Mar 2019

The Ombudsman's final decision:

Summary: Mrs B complains that the Council did not properly notify her that she was no longer eligible for a self-build exemption from the Community Infrastructure Levy. As a result, she lost her chance to appeal against what she considers to be an unreasonable charge. The Ombudsman has found no fault in the notification process. As there were appeal rights available which we consider that Mrs B could reasonably have used, we consider that any dispute over the liability or the amount due is therefore outside the Ombudsman’s jurisdiction.

The complaint

  1. Mrs B complains that she did not receive the Community Infrastructure Levy liability notice from the Council. As a result, she was unable to appeal against the Council’s decision that she was no longer exempt from the charge. She considers that it is unreasonable for Council to levy the charge on the whole property. Instead, she considers that it would be reasonable for the Council either to charge her just on the increased area of the house, or to allow her to restore it to the previous plans.

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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. 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)
  2. 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), as amended)

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How I considered this complaint

  1. I have considered Mrs B’s written complaint and spoken her. I have considered the Council’s response to the Ombudsman’s enquiries together with the applicable law and guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

  1. The Community Infrastructure Levy (CIL) is a planning charge, introduced by the Planning Act 2008 as a tool for local authorities in England and Wales. It is used to provide infrastructure to support the development of their area. A development may be liable for a CIL charge if a local planning authority has chosen to set a charge in its area.
  2. Individuals who want to build their own home can apply to be exempt from paying the CIL. However, paragraph 54B(6) of Part 6 of the CIL Regulations (2010), as amended, says:

“a person who is granted an exemption for self-build housing ceases to be eligible for that exemption if a commencement notice is not submitted to the collecting authority before the day the chargeable development is commenced.”

  1. The Planning Practice Guidance also stated:

“before commencing the development, the applicant must submit a commencement notice to the charging authority. This must state the date on which the development will commence, and the collecting authority must receive it on or before that date. An applicant who fails to submit the commencement notice in time will immediately become liable for the full levy charge.”

  1. The Guidance was updated in February 2018 and now states:

“…there is a set process which requires 4 steps to be undertaken within the required timescales. Failure to follow the set procedures within the required timescales will mean that the exemption will not be obtained, or will be rescinded if previously obtained, and a full levy liability will be incurred.”

“The exemption must be applied for and obtained, and a Commencement Notice must be received by the Collecting Authority, prior to commencement of the development (start of works on site)…”

  1. There is a right of appeal to the Valuation Office Agency against any calculation of the chargeable amount of a CIL in the Liability Notice.
  2. There is also the right of appeal to the Planning Inspector against decisions by the Council to impose a surcharge or to deem that development has commenced. Any such appeal must be made within 28 days.

What happened

  1. Mrs B bought a house with a view to demolishing it and building a new house on the site. She applied for planning permission for a new two-storey house with rooms in the roof and basement. She also submitted an assumption of liability form to the Council in respect of the CIL and claimed exemption as a self-build property.
  2. The Council granted planning permission and, after Mrs B had submitted the required commencement notice, confirmed that her it had approved her self-build exemption from the full assessed charge of more than £80,000.
  3. The exemption letter states:

“Failure to implement chargeable development 2016/[****] in accordance with the approved plans may invalidate any exemption or relief granted.”

  1. The existing house was demolished and works started on the new house. Mrs B then submitted a new application to vary one of the conditions of the previous application to increase the footprint of the basement. She also submitted an assumption of liability notice in respect of the CIL for the new application.
  2. The Council granted planning permission. The CIL Obligations Officer has explained that he generated the new liability notice in March 2018, which is made out to the address provided by her planning agent, using a standard template linked to his database. This automatically entered the date the notice was generated. The liability notice was given to the land charges section which registered. It was then scanned and placed on the public website a week later and, to the best of the officer’s knowledge, posted to Mrs B the same day.
  3. The liability notice advised that Mrs B was now liable for the full assessed charge of more than £85,000 (based on the larger footprint). No exemption was applicable because development had commenced. It again advised of appeal rights.
  4. In the autumn of 2018, the Council wrote to Mrs B with a demand notice for the full charge. The letter again provided details of appeal rights. Mrs B has explained that she and her agent contacted the Council just before the 28-day appeal deadline but were advised that the only officer familiar with the CIL was on leave and they should send him an email.
  5. On the officer’s return, Mrs B discussed her concerns and offered to fill in the additional basement area, which would have resulted in the house being built in line with the initial plans for which the Council provided the exemption. She also pursued her complaint through the Council’s complaints procedures.
  6. The Council did not uphold her complaint. It considered that it had notified her properly of her appeal rights and that the CIL was due in full because building the amended basement before planning permission was granted had invalidated the self-build exemption. It explained that, even if Mrs B and her agent had not missed the appeal deadlines, it considered that her appeal would have been unsuccessful. In support of this, it said that there had been an identical Appeal case recently which had been dismissed.
  7. The Council agreed only to apply late-payment surcharges from the time that it concluded dealing with her complaint in November 2018. It also agreed to Mrs B’s request to pay the charge by instalment over 36 months.

My assessment

  1. The first question for the Ombudsman to consider is whether the Council undertook the required notification, which was to send a liability notice to the person(s) assuming the CIL liability - in this case Mrs B. The Council says it sent the liability notice to the correspondence address provided by Mrs B’s agent.
  2. Such notices are automatically generated, and a correctly addressed notice was uploaded to the Council’s website one week after the date of the notice. It is unfortunate that Mrs B did not receive this, but I see no reason to question the Council’s statement that it was sent. Mrs B has suggested that the Council should have followed up to check that the notice had been received, but the Council’s responsibility was to send the notice to the correct address for the person accepting liability. There was no duty for it to follow up to confirm receipt.
  3. In any event, Mrs B received the subsequent demand notice in September 2018. I note that the Council’s letter suggests having discussions with the Council in order to see whether a dispute over enforcement action, i.e. surcharges, could be resolved without appealing. I also note that the relevant officer was on leave when Mrs B and her agent tried to contact him at the end of the 28-day period.
  4. However, the notes on the demand notice clearly explained that any dispute over the commencement date could be appealed to the Planning Inspector within 28 days. Moreover, if Mrs B was uncertain about how to proceed or about appealing, I note that she had professional advice from a planning agent. I consider it would therefore have reasonable for her to use her appeal right.
  5. I have considered whether to exercise discretion to consider Mrs B’s complaint about how the CIL should apply to her new-build property. But as I have found no fault in the notification process, as Mrs B had professional advice, and as the Council’s decision seems consistent with the planning appeal which the Council has provided, I see no grounds to do so.

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Final decision

  1. I have closed my investigation into Mrs B’s complaint because I have found no fault in the notification process and, as Mrs B had appeal rights, any dispute about the charge is outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman

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