Summary: Mr X complained about the Council’s involvement relating to building development works on his land. We ended our investigation because it is unlikely to result in a finding of fault or an injustice that we can remedy.

The complaint

1. Mr X complained about the Council’s involvement relating to his building development works. Mr X said that if the Council had acted differently, he might have avoided an increased Community Infrastructure Levy surcharge.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,

(Local Government Act 1974, section 24A(6))

3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)(a), as amended)

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint. I considered appeal rights for Community Infrastructure Levy valuations.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
8. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
9. The Community Infrastructure Levy (CIL) is a surcharge that councils can impose on new development in their areas. The surcharge only applies if the Council has a CIL policy, with details and rates on how the charge will be applied. Most new development that creates additional floor space of 100 square metres or more is likely to be liable for a charge.
10. Some developments may be eligible for relief or exemptions from the levy. Exemptions include developments built by ‘self-builders’.
11. It is possible to appeal against CIL charges, if:
• The claimed breach which led to the charge did not happen;
• The Council did not serve the CIL liability notice in relation to the development; and
• The charge has been calculated incorrectly.
12. CIL rights of appeal are subject to time limits. Advice on CIL regulations, surcharges and appeals is available on the www.gov.uk website.

What happened

13. The Council approved Mr X’s planning application. The Council has a CIL charging policy and schedule. Mr X’s son was granted a self-build exemption and the surcharge was applied to the extension.
14. Building work began and Mr X’s neighbour complained that the development did not match approved plans. A planning enforcement officer visited the site in March 2020, just before the COVID-19 lockdown. Mr X said that, after the visit, problems with the building became apparent and led to his builder demolishing walls and rebuilding them in the same location with new materials and better foundations. The Council said that the demolition and rebuild works did not have planning permission and so were in breach of planning control.
15. By the time the enforcement officer came out to visit again, in July that year, this work had been completed. The enforcement officer advised that the work did not accord with plans and said Mr X should apply to amend the approved plans.
16. Mr X did submit an amended plan and it was approved. The Council also revised its CIL surcharge, so that the self-build exemption was not applied and the whole of the floor area was taken into account in the surcharge calculation.
17. Mr X said he knew there was a right of appeal against the surcharge but did not choose to pursue it. Mr X thinks that if the Council had acted more quickly or differently, the enforcement complaint could have resolved sooner, and so he would not have been subject to the increased CIL surcharge.

My findings

18. We are not a planning or CIL appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
20. I do not consider I should investigate Mr X’s complaint further, and my reasons are as follows:
• The surcharge Mr X complains about has an appeal right attached to it. Mr X chose not to appeal. We are not an alternative route to remedy any matter that could have been determined at appeal.
• Mr X said that if the Council had acted sooner, he might not have been found in breach of planning control or advised to submit an application to amend his plans. Mr X complains about the Council’s actions during the COVID-19 lockdown when local government services were either halted or much reduced. I think it is unlikely that we would find fault, as delays between March and July 2020 must be considered in the context of the circumstances of the times.
• The increased surcharge resulted from the amended plans, following changes in circumstances, that may have been beyond Mr X’s control, but are also not the Council’s responsibility.
• The Council did not compel Mr X to submit his application to amend his plans. If he had not done so, the Council would have had to decide whether to take enforcement action. Enforcement action is discretionary and relies on harm to the public to justify formal action. As the walls that were removed and rebuilt are in the same location and use similar materials to the original, it is possible the Council would have not taken formal action.

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Final decision

21. I ended my investigation, as it was unlikely to result in a finding of fault or a recommendation for a remedy.

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Investigator's decision on behalf of the Ombudsman