Waverley Borough Council (22 011 676)

Category : Planning > Other

Decision : Closed after initial enquiries

Decision date : 01 Mar 2023

The Ombudsman's final decision:

Summary: We will not investigate Mr X’s complaint about the Council’s failure to grant him a Community Infrastructure Levy exemption in 2021. This is because the courts are better placed to decide if Mr X made a valid application for the exemption and whether the Council complied with the relevant Regulations in dealing with the application. There is also no direct link between the fault alleged by the Council and the injustice Mr X claims.

The complaint

  1. The complainant, Mr X, complains the Council failed to grant him an exemption from the Community Infrastructure Levy (CIL) for an extension to his property. He also says he was not informed by the Council of his liability for the CIL until after he had started building works. As a result the Council says he must pay more than £90,000 plus a surcharge of £2,550.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I considered information provided by Mr X and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. While Mr X says he did not receive any information from the Council about the CIL, its records show it wrote to him with a CIL liability notice on 5 May 2021 and we cannot hold the Council responsible for any failures by the postal service.
  2. The notice clearly explained Mr X would need to submit a CIL Form 2 (Assumption of Liability) and a CIL Form 6 (Commencement Notice). The Council also sent a copy of the liability notice to Mr X’s agent/architect explaining the need to submit the CIL Form 2, but the agent did not discuss this with Mr X and did not submit the forms.
  3. Mr X’s agent had previously submitted a CIL Form 9 to claim the exemption and he disputed the need to submit the CIL Form 2, as do his solicitors now. But whether CIL Form 2 was required for the exemption requires interpretation of the CIL Regulations and this is not something we can provide. If Mr X wishes to challenge the requirement to pay the CIL he would have to do so at court.
  4. However, even if we could prove fault by the Council in not granting the exemption it is unlikely we could say this caused the injustice Mr X now claims. This is because Mr X lost any right to an exemption when he commenced work to develop his property before the Council notified him of its decision on his claim. It is therefore Mr X’s actions in starting the building work which rendered him liable to pay the CIL without benefitting from an exemption, rather than any delay by the Council in issuing the exemption. The Council’s decision on Mr X’s planning application clearly explained the development was liable for CIL and it was therefore Mr X’s responsibility to ensure he followed the proper process before starting the work, including to claim any exemptions which may apply to the work.

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Final decision

  1. We will not investigate this complaint. This is because the courts are better placed to decide if the Council properly dealt with Mr X’s claim for a CIL exemption and we could not say the injustice he claims is the result of any fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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