Summary: Mr P complains about a Community Infrastructure Levy (CIL) charge he had to pay to the Council. He says the Council failed to explain or assist him. The Ombudsman has not found evidence of significant fault by the Council and has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr P) says the Council incorrectly required him to pay a full CIL charge and failed to explain the process or assist him. He also says the Council’s complaints process is not independent.

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What I have investigated

2. I have looked at how the Council dealt with Mr P’s case but there are some parts I cannot consider. I set those out below.

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The Ombudsman’s role and powers

3. The law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a government minister. The Planning Inspectorate acts on behalf of a government minister. However, she may decide to investigate if she considers it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
4. The law says the Ombudsman cannot normally investigate a complaint when someone can appeal to a tribunal. However, she may decide to investigate if she considers it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a))
5. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
6. 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

7. I have spoken to Mr P and considered the information he provided. I asked the Council questions and carefully assessed its response and supporting papers.
8. I have shared my draft decision with both parties.

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What I found

What happened

9. In March 2017, the Council received a planning application from Mr P’s agent (Mr X) for change of use and conversion of a pub into residential flats. A CIL form was also submitted by Mr X. He failed to tick the section indicating the building had been continuously occupied for at least six months during the last three years. A few days later the Council emailed Mr X on 14 March advising him about allowances against the CIL charge for properties that had been occupied for six months and asked him to provide occupancy evidence. The email was sent to the wrong address. In June Mr P advised the Council that he had a new agent (Mr Y). In July, the Planning Officer’s report on the planning application noted CIL was “payable on this development”. The Council granted planning permission in October.
10. In January 2018, the Council told Mr Y to return an Assumption of Liability Notice. Mr P signed the form and Mr Y sent it back on 22 January. By signing the documents Mr P was accepting he would “assume liability for the CIL charge” and that he “understood [he] must submit a commencement notice”. On 30 January, the Council sent a ‘Form 2’ to Mr Y to claim relief from CIL for social housing. He was advised to contact the CIL Team to make sure regulations were met.
11. On 12 March Mr Y spoke to a Council Officer who then emailed him and Mr P. She sent them a Liability Notice requesting full payment of the CIL charge. She said the Council had not received an application for social housing relief. To qualify the applicant should have completed and returned the forms prior to commencement (commencement is when a property becomes occupied). The Officer attached other information for Mr Y and Mr P about CIL. Three days later the Officer sent both parties links to CIL guidance and arranged a meeting at Mr Y’s request so he could provide evidence to support his view the liability notice was incorrect. Mr Y had also raised concerns about the on-line CIL calculator. The Officer confirmed it was not working properly and she would look into the matter. Mr Y cancelled the scheduled meeting and subsequently sent the Council information on floor space at the development.
12. On 11 April, the Council agreed to reduce the CIL charge because of the revised floor space information Mr Y had sent in. The Council notified Mr Y in May about its decision (as a Regulation 113 review) that it had assessed the information and found the CIL liability was lower. In June Mr Y asked the Council to review whether Mr P should pay for the CIL charge at all. He said the Council’s guidance indicated no charge should apply to the development. On 25 June, the Council replied. It said it had previously requested information from Mr Y and Mr P and not received it including on 30 January regarding relief for social housing. It explained the CIL process was separate from planning permission. The Council had correctly identified the development as liable for the CIL charge and the correct process had been followed. As Mr Y had now told the Officer the flats were occupied – meaning commencement had occurred- and the Council had not received a commencement notice it would now have to raise a CIL demand invoice for immediate payment along with a surcharge. The Officer visited later that day and confirmed the flats were occupied.
13. On 5 July, the Council issued a demand notice and invoice to Mr P. Mr Y responded that a Councillor was looking into the case. The Council put the payment demand on hold. At the start of August, the Councillor, Mr Y and Mr P met with the Council. An Officer emailed Mr Y later that day with links on how to appeal the surcharge and the commencement date. In October, the Planning Inspectorate told the Council Mr P’s appeal was deemed invalid. On 19 November Mr P submitted a formal complaint. He said the Council’s guidance stated he had zero CIL liability and this had been confirmed by the on-line calculator. He was dissatisfied with how the Council had handled matters. The Council responded on 13 December. It explained the starting point for CIL is that all residential developments are chargeable and the charge can be set aside in some cases if conditions are met. If the conditions are not met any potential discount is removed. There was no evidence the Council had made incorrect calculations in deciding the charge. In addition, the calculator tool was only a guide for applicants and not definitive. The calculator had been faulty and was removed from the website to have the error fixed. The Council apologised for this but said it was not sufficient justification to ignore all other information it had provided showing a charge was payable. It also stated that guidance notes were just a guide and could not cover all types of developments. It went onto say that applicants held the onus of responsibility to supply evidence of continuous use of a property.
14. On 21 December Mr P submitted a review request on his complaint. He reiterated his concerns The Council explained the CIL form returned by Mr X did not indicate continuous use of the property. It acknowledged the March 2017 email to Mr X had not been received but Mr Y and Mr P had been told about exemptions on 12 March 2018 and 15 March. The Council had also told them about the right to seek an exemption from the CIL charge up to when a property was occupied in the 30 January email. The Council said it usually issued a Liability Notice within two weeks of planning consent being granted and it had taken longer in this case. The Council has kept the payment demand to Mr P on hold until this investigation is completed.

What should have happened

15. The CIL is a levy charged on most new developments. The levy is calculated at a rate per square meter based on the Gross Internal Area of a development. Some developments may not be liable for the levy if the applicant can show, within the required timeframes of the process, that conditions are met including that a property has been occupied continuously for six months in the three years leading up to planning consent.
16. The process for the CIL charge is when a planning application is received for a development the Council will send the applicant a form (CIL PAIIR form) to complete and return. Part of the form asks whether the property has been continuously occupied for six months within the last three years. As part of the planning process a planning report is compiled which will also note whether nor not a CIL charge is likely to apply. Once the Council grants planning permission it will issue the owner a Liability Notice. In 2017 there was no deadline for how soon the Council should issue the Notice, since 2018 it has a two-week timeframe. The owner also signs and returns an Assumption of Liability Notice to the Council. The Council will consider the evidence provided by the applicant to see whether a CIL charge is applicable and what the amount should be. Before commencement the owner should send the Council a Commencement Notice. The Council will then issue a demand notice if a CIL charge is required.
17. The Council’s guidance clearly sets out the process for applicants. It also explains that any exemption for the CIL charge is revoked if a “disqualifying event” occurs. That would include commencement taking place without notifying the Council. It also explains that an applicant is responsible for submitting evidence “to prove the building has been occupied” and the “onus is on the applicant to provide sufficient evidence”.
18. The Council provides an on-line CIL calculator to give applicants an indication of the likely charge. The site, at the time Mr Y and Mr P were using it, stated “please note this calculator is only a guide” and the final CIL charge “could be higher or lower” as set out in a Liability Notice.
19. The Council’s complaints process is in two stages. Initially a complaint is considered by the relevant service area and responded to. If the complainant wants to escalate matters the case is reviewed by a senior officer from another service area.

Was there fault by the Council

20. There is a possible fault by the Council regarding its email of 14 March 2017 to Mr X. This was sent to an incorrect address. It is unclear whether this was an error on the part of Mr X or the Council. However, it did not result in an injustice to Mr P because the Council subsequently told him that a CIL charge was payable several times in 2018 along with comments in the planning officer’s report in 2017 noting that a charge was likely payable.
21. The Council’s complaints response in December 2018 incorrectly stated it had failed to meet a two-week deadline to send out the Liability Notice. In fact, that deadline was not in place in 2017, it came into effect a year later. So whilst the complaints response was inaccurate there was no initial fault by the Council and no resulting injustice to Mr P.
22. Mr P says the Council failed to explain the CIL process and did not assist him. I do not agree. I am not reassessing whether Mr P was liable for the charge, he could appeal that along with the surcharge. The evidence shows me the Council’s guidance clearly set out for developers what they needed to do and the Council has followed its procedures. Mr X failed to indicate to the Council in March 2017 whether the building had been occupied for six months, a requirement for a discount/ waiving of the CIL charge. Mr P says the Council should have contacted other teams to obtain this information. That is a misunderstanding of how the process works. The guidance clearly sets out the onus of responsibility is on the applicant to provide evidence including evidence of occupation or that commencement has occurred. There was no duty on the Council to find out this information. It explained the process to Mr Y in emails and referred him to the guidance. I do not see there was any more the Council could reasonably be expected to do. It adhered to its procedures and provided a sufficient level of service.
23. Mr P refers to the Council’s guidance and the on-line calculator as leading him to believe he did not have to pay the CIL charge. The calculator was faulty at the time but the page told users it was only a guide. In addition, the guidance is just that: a guide for applicants. I do not see it is reasonable for an applicant to assume that examples in a guide mean they will not be liable for the charge without checking with the Council.
24. Mr P says the Council’s complaints process is not independent. There is no fault by the Council. Its process follows a standard model used by a lot of councils. There is no duty on the Council to employ an independent person to review a complaint and so no fault in its handling of this case.
25. I appreciate Mr P disagrees with the Council’s decisions in this case. The Ombudsman will not question the merits of such decisions where there is no significant fault: that applies to this complaint.

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Final decision

26. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

27. Under the CIL process an applicant has the right to appeal a surcharge to the Planning Inspectorate. They can also appeal their liability to pay the charge to the Valuations Officer Agency. The Ombudsman will not usually consider parts of complaint where the complainant has the right to use an alternative form of appeal.

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Investigator's decision on behalf of the Ombudsman