Summary: Mr X complains the Council is failing to discharge its duties under section 2A of the Self Build and Custom Housebuilding Act 2015, as amended. Based on the documentation currently available there is no evidence of fault in the way the Council has met its duties under the Self-Build and Custom Housebuilding Act 2015.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council is failing to discharge its duties under section 2A of the Self Build and Custom Housebuilding Act 2015, as amended. Mr X states the Council has misinterpreted the Act and not granted planning permission for sufficient serviced plots for self-build and custom housebuilding to meet the demand in its area.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments.

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What I found

Self Build and Custom Housebuilding

5. The Self-Build and Custom Housebuilding Act 2015 places a duty on councils to keep and have regard to a register of people who are interested in self-build or custom-build projects in their area. This register helps inform councils of the level of demand for self-build and custom-build plots in their area. It also enables councils to develop a strategy for delivering serviced plots for self-build and custom-build projects.
6. The Housing and Planning Act 2016 imposes a duty on local councils to grant suitable development permission to enough serviced plots of land to meet the demand on their self-build and custom build register. The level of demand is the number of entries added to a council’s register during a base period.
7. The first base period began on the day on which the council established the register and ended on 30 October 2016. Each subsequent base period is the period of 12 months beginning on 31 October. At the end of each base period, councils have 3 years to give permission for as many suitable plots of land as there are entries for that base period.
8. Being on the register does not guarantee a suitable plot will be identified or become available.

Local Plan

9. The Council adopted a new Local Plan in the summer of 2017. Policy H15 relates to Custom and Self-build Housing. It identifies a range of suitable, sustainable locations where it encourages proposals for custom and self-build housing. The policy also encourages landowners and developers to offer plots and development opportunities to the custom and self-build market.
10. The Council has also produced a Supplementary Planning Document (SPD) for self and custom build dwellings.

What happened here

11. Mr X applied to join the register during the first base period which ran from 1 August 2015 to 31 October 2016. A total of 97 people joined the register during this period, so the Council had a duty to grant suitable planning permissions for 97 suitable plots by 31 October 2019.
12. Mr X states the Council has not met this demand. He complains that while the Council has established and maintained a register it has not acted to ensure it met the identified demand for self-build and custom housebuilding.
13. The Council issued a Custom and Self-build progress report in January 2019. The report states the Council considered any site granted planning permission during the base period that did not previously have permission could be developed as a custom or self-build plot. These sites would therefore be considered suitable under the legislation. However, it recognised plots were more likely to come forward on applications for 10 or fewer dwellings.
14. The Council states it granted 97 applications for 253 homes on sites with less than 10 dwellings during base period 1, thus satisfying the identified demand.
15. Mr X disputes the Council’s interpretation of the Housing and Planning Act. He asserts the Council has deliberately interpreted the legislation to avoid having to take any action above what it did prior to this legislation coming into force. Rather than counting all permissions for up to 10 plots towards the target, he asserts the Council should only include suitable self-build plots within any development.
16. In addition, Mr X asserts that if the Council had identified 253 plots during base period 1 which were truly suitable and available it should have told those on the register.
17. Mr X made a formal complaint to the Council in February 2019. He complained that the Council’s failure to comply with its duties meant he had not been able to identify a suitable self-build plot or progress his plans. The Council did not uphold Mr X’s complaint. It considered the wording of the legislation and guidance could be interpreted to mean that any residential plot granted planning permission within the relevant period could count towards the target.
18. The Council did however acknowledge it could do more to assist potential self-builders and made a series of recommendations.
19. Mr X was not satisfied by this response and asked the Council to consider his complaint further. He felt the initial response had misrepresented his concerns about the Council’s duty to permission enough serviced plots to meet the identified need. Mr X also stated the Council was obliged to assess demand by reference to the number of applicants on the register in each base period. At the end of that period the Council then had three years to permission the same number of suitable plots. He considered the Council was wrong to include permissions granted during the base period and should only consider permissions granted in the following three years.
20. In its response, the Council did not accept it was wrong to include permissions granted during the base period in assessing whether it had met the demand. The Council noted the Act expressly excluded permissions granted before the start of the first base period. But neither the Act nor the Regulations state that permissions granted during the first base period do not count.
21. The Council also noted that even if it excluded the 253 permissions granted during the base period, it had discharged its duty by granting 145 permissions between 31 October 2016 and 30 October 2017.
22. In relation to what could be considered a ‘suitable’ development the Council referred to the legislation and guidance. This states development permission is suitable if it is a permission which could include self-build and custom housebuilding. The Council made a policy decision to only count developments of 10 dwellings or less when assessing whether it had given suitable development permission. But it stated the legislation was not this restrictive. It would be open to the Council to include any site granted planning permission during the base period if the site could potentially include self-build or custom build serviced plots.
23. The Council also noted the legislation did not specifically require the Council to communicate details of suitable development permissions to those on the register.
24. Mr X contends the Council’s position is wrong and has asked the Ombudsman to investigate. Mr X asserts that even if the Council’s interpretation was correct, it does not meet the second requirement of meeting the demand. The plots with permission are not available on the open market. He states that if the Council had specified which permissions were suitable for self-build, and they were on the open market he would have tried to buy one.
25. In response to my enquiries the Council maintains it meets the duties the Self-Build and Custom Housebuilding Act places on it. The Act requires sufficient suitable planning permissions that could be used for self-build or custom housebuilding. It is satisfied its records show it has not yet failed to deliver such suitable permissions over the required timeframe
26. The Council states it has taken legal advice on its decision to include permissions granted during the base period towards meeting that base period’s demand. Although it is satisfied this approach was legally sound, the Council has reviewed its process and decided to amend its methodology. It feels this will make the delivery of suitable permissions that could contain self-build or custom housebuilding plots clearer and more logical. The Council states it continues to meet its obligations under this new method.
27. The Council reiterates that its duty is to grant permissions that “could” rather than “will” contain self-build or custom housebuilding plots. The Council states it is not under a duty to ensure the delivery of self-build or custom housebuilding on any of the plots it has identified as meeting the demand.
28. In considering what would be an appropriate plot the Council has used the definition of a serviced plot as set out in the Act. That is “a plot of land which satisfies such requirements about utilities and other matters as may be specified”. It considers any granted application would meet that test. It has however only included smaller sites in its calculation as it believes these are more likely to come forward as self-build plots.
29. The Council states it is under no obligation to communicate with those on the Register. It is up to individual authorities to consider how and when to communicate with those on the Register, should they choose to. As part of recent changes to the way it administers the register, the Council has decided to introduce a regular newsletter. This will highlight ways for those on the register to find out about recently determined applications and will highlight individual developments.

Analysis

30. The Ombudsman’s role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
31. Decisions on whether to include permissions granted in the first base period are a matter of council officers’ professional judgement. As is the decision to include all planning applications for developments of 10 dwellings or less. The Ombudsman does not generally question the professional judgement of council officers or the merits of their decisions unless there is evidence of fault in the way the decisions were made. The Council has explained how it reached these decisions based on its interpretation of the legislation and guidance.
32. Mr X disagrees with the Council’s interpretation and application of the Self-Build and Custom Housebuilding Act 2015. But this is not an issue the Ombudsman can resolve. It is not the Ombudsman’s role to interpret legislation, that is the role of the courts. I have been unable to identify any current case law in support of either Mr X’s or the Council’s position. In the absence of any such case law I am unable to say the Council is at fault.
33. I recognise the Council has changed its position and no longer includes planning permissions granted during the first base period when calculating whether it has met demand. This does not in itself mean the Council’s initial position was wrong, and I note the Council maintains its original position was legally sound.
34. Guidance recommends authorities consider informing those on the register about suitable plots, but the Act does not impose a duty on authorities to communicate this information to them. The Council has acknowledged it could do more to assist those on the register. The introduction of a regular newsletter should improve the situation.

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Final decision

35. There is no evidence of fault in the way the Council has met its duties under the Self-Build and Custom Housebuilding Act 2015.

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Investigator's decision on behalf of the Ombudsman