Summary: The Council’s actions did not lead to the injustice claimed by the complainant so no further investigation is warranted. Even if the Council was at fault, Mr X would have never had a right of review or appeal against a Community Infrastructure Levy on his housing development as he had commenced work before the Community Infrastructure Levy process began.

The complaint

1. The complainant, who I shall call Mr X, complains that an error by the Council meant he could not ask for a review or appeal against the Council’s decision on the Community Infrastructure Levy due on a housing development.

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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 any fault has not caused injustice to the person who complained, further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, (Local Government Act 1974, section 24A(6))
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I read the papers put in by Mr X and discussed the complaint with him.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

6. The Community Infrastructure Levy (CIL) allows Councils to raise funds from developers who are undertaking new building projects in their area. Money gained through CIL will be used to pay for strategic infrastructure projects.
7. The CIL process involves several legal processes at various stages of a development:
• Stage 1: The planning application is submitted, with a CIL additional questions form, to enable the Council to decide the CIL.
• Stage 2: The applicant puts in the Assumption of Liability Notice before commencement of development once it is known which parties will pay the CIL. If no party assumes liability for CIL then payment will default to the landowner
• Stage 3: The Council issues a Liability Notice. If the applicant considers the CIL liability has been calculated incorrectly, they can request the Council recalculates it. If, following recalculation, the applicant still considers the amount is wrong they can appeal to the Valuation Office Agency.
• Stage 4: The applicant can apply for relief or exemption from CIL e.g. for social housing. To apply for relief or exemption, the Council must have received an Assumption of Liability form and an application for relief before the development commences. There is a right to review of the Council’s decision on relief, which then carries a right of appeal to the VOA.
• Stage 5: The applicant tells the Council (Commencement Notice) at least one day prior to commencement before starting work on the development.
• Stage 6: The Council issues a Demand Notice after receiving the commencement notice from the applicant. If work begins and an applicant has not sent an assumption of liability notice or a Commencement Notice full payment is due.
• Stage 7: The applicant pays the CIL.

Key facts

8. Mr X is the director of a house building company. He bought a site that had planning permission for four houses. The Council granted the planning permission for five houses in December 2019, after work had started on the site. This application was subject to a CIL of £48,000.
9. The Council said it sent form 2 (assumption of liability) to Mr X’s agent in January 2020. As Mr X did not return the form the Council assumed Mr X, as the landowner, was liable for the CIL.
10. The Council sent the CIL liability notice to Mr X in June 2020. Mr X says he did not receive it and became aware of it in December 2020.

My analysis

11. Mr X complains that he has lost his ability to ask for a review or appeal against the CIL as he did not receive the liability notice and so could not request a review within the timescale.
12. I have noted Mr X’s concerns. However, even if the Council was at fault I do not consider he has suffered any injustice so I intend to discontinue this investigation. Mr X would only have had a right of review or appeal against the CIL if he had been able to do so before the development commenced. In this case, Mr X had already started the building works before gaining planning permission and so there would have been no right of appeal against the CIL.

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Final decision

13. I have discontinued my investigation of the complaint as there is insufficient evidence of injustice to warrant further investigation or a remedy. This complaint is not upheld.

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Investigator's decision on behalf of the Ombudsman