Elmbridge Borough Council (18 017 252)

Category : Planning > Other

Decision : Upheld

Decision date : 17 Jun 2019

The Ombudsman's final decision:

Summary: Mr P complains the Council failed to review the Affordable Housing Contribution on his “self-build” home in 2017. The Council has already accepted some fault before the case came to the Ombudsman. We have upheld the complaint but not found any outstanding injustice to Mr P and have completed the investigation.

The complaint

  1. The complainant (whom I refer to as Mr P) says the Council failed to review the Affordable Housing Contribution (AHC) in 2017 on his self-build home.

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The Ombudsman’s role and powers

  1. 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))
  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 have considered the information provided by Mr P. I asked the Council questions and carefully examined its response and the relevant policy documents covering the period I have investigated.
  2. I have shared my draft decision with both parties.

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What I found

What happened

Background

  1. In 2015 a land owner [Mr X] applied to the Council for planning permission to build a detached house. In 2016 Mr X reached a unilateral undertaking with the Council that an AHC was required if planning permission were granted. The Council granted planning permission in 2017. A Community Infrastructure Levy (CIL) and AHC were payable.

Events I have investigated

  1. In May 2017 Mr P applied to the Council to vary planning permission. He had bought the land and wanted to reduce the size of the detached house. He submitted a CIL self-build exemption form. In July, the Council granted planning permission. It notified Mr P that a CIL self-build exemption had been granted. On 24 July Mr P emailed the Council that commencement on the development would start 31 July. On 2 August, the Council sent Mr P an invoice for the AHC on the development. Mr P did not pay and so a final reminder was sent by the Council at the end of August.
  2. On 4 September Mr P’s representative emailed the Council confirming a new commencement date of 24 September and attached a new commencement notice. On 20 September, the Council emailed Mr P. It said that commencement of the development triggered the need to pay contributions including the AHC. If Mr P did not start work on the development on 24 September he could withdraw the commencement notice and have a deed of variation considered by the Council. A link explaining the process was provided.
  3. On 22 September Mr P’s representative emailed the Council. Mr P was concerned about rising build costs and was therefore submitting a viability study. The representative asked the Council to confirm it would refer it to the independent consultants “in the usual way” to consider if there were viability issues. On 21 November Mr P made full payment of the AHC.
  4. Mr P complained to the Council in 2018. The complaint was considered at three stages of the Council’s complaints process. On 23 January 2019, the Council wrote to Mr P. It said it had found “poor decisions on both sides”. The payment for AHC was triggered because Mr P submitted a commencement notice. The Council told him he could withdraw the notice and submit an application about viability. He did submit the application but failed to withdraw the commencement notice. The Council decision to refuse an AHC review was in line with legislation. However, “given the build and the extent to which the development had commenced the officer had the discretion to allow this review”. The Council had therefore asked its independent consultants to review the financial viability issue based on the documents Mr P submitted in September 2017. The consultants found full AHC would have been payable and explained the reasons why. The Council said it could not carry out a retrospective variation of the AHC as Mr P requested.

What should have happened

  1. At the time of Mr P’s application, the Council had to consider his application against a range of policies and guidance including Policy CS21: Affordable Housing (the Policy) and the Supplementary Planning Document (SPD), which gives more detail on how the policy is implemented.
  2. CIL was a local levy on new developments. In addition, there was the AHC requiring an applicant to either provide on-site affordable housing or make a financial contribution. The methodology used to calculate the contribution was detailed in the SPD. The Council also had an on-line calculator to allow applicants to estimate the likely contribution.
  3. Where a person intended to build in the area the Council’s procedures stated they should seek advice from the Council on whether an AHC was required or whether they had to actually provide affordable housing. The applicant would then follow the planning application process and ensure they provided the required information for the Council to assess if a CIL charge and AHC were applicable.
  4. The Council would consider the evidence provided by the applicant to see whether AHC was required and what the amount should be. Once the Council granted planning permission it would issue the applicant a liability notice. Before commencement of the development the applicant must send the Council a commencement notice. Failure to do so meant any reductions in charges would be voided. The Council would then issue a demand notice if AHC was required.
  5. An applicant could request a viability assessment which evaluated the economic viability of a proposed development. The Council would ask independent consultants for a quote on how much it would cost to appraise the assessment. The applicant had to pay the consultant for the appraisal to take place. Without payment, no review could be carried out. If the review found there were economic constraints the Council could consider with the applicant whether to vary the AHC.
  6. The SPD stated that an applicant could request the Council vary the amount of AHC payable but must submit a deed of variation prior to the commencement of the development. Once the development had commenced there was no process in place to allow a review and a deed of variation was not valid. The Council says its Officers did have discretion at the time of this case to allow a review. It would expect an applicant to withdraw the commencement notice and submit the review request. However even where an applicant had not followed the correct process and had failed to withdraw the commencement notice an Officer could consider whether to allow the review.

Was there fault by the Council

  1. Mr P says the Council failed to review the AHC contribution and look at the viability assessment in 2017. I do not see evidence of additional fault to that already identified by the Council in its 23 January 2019 complaint response. In that letter, the Council notes that Officers had discretion to allow a review even where the correct process was not followed by an applicant. That meant the Council could have considered Mr P’s request in September 2017 for the viability issues to be considered. I have not seen evidence of any further fault by the Council. Mr P feels he is being penalised by the Council compared to larger scale developers. However, I see no evidence to support this. The Council’s policy and requirements on applicants were clearly set out and Mr P was aware when he bought the land that an AHC had been set by the Council with the previous owners. I understand Mr P says he believed the AHC would be significantly reduced if he varied the size of his home but that was never communicated to him by the Council in any documents I have seen.
  2. I appreciate that Mr P may disagree with the recent viability assessment carried out by independent consultants but there is no evidence of an incorrect process being followed. The Ombudsman will not question the merits of such decision in the absence of any procedural errors.
  3. Mr P also told me he had understood from the Council in 2018 or 2019 that it might reach a compromise with him on the amount payable. I have seen no contemporaneous papers to corroborate his recollection and cannot uphold this part of his complaint.

Did the fault cause an injustice

  1. The Council has previously accepted with Mr P that it could have considered the viability issue in 2017. However, there is no injustice to Mr P because the Council has since carried out a viability review taking account of the information he provided to the Council in 2017. It found Mr P was still liable for AHC.

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Final decision

  1. I have upheld the complaint, because of the fault already accepted by the Council, and completed the investigation as there is no outstanding injustice.

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Investigator's decision on behalf of the Ombudsman

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