Summary: We will not investigate Mr X’s complaint about the Council’s delay in issuing a community infrastructure levy notice. This is because the complaint is late and it is unlikely investigation would achieve any worthwhile outcome for Mr X.

The complaint

1. The complainant, Mr X, complains the Council failed to promptly issue a community infrastructure levy (CIL) notice for his development following its decision to grant planning permission. He says it took the Council 3.5 years from completion of the work to issue the notice and says this caused him distress and financial hardship.

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The Ombudsman’s role and powers

2. 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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. 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)(b), as amended)
6. The Planning Inspector acts on behalf of the responsible Government minister and deals with appeals about, amongst other things, decisions to impose a surcharge on the amount of CIL payable in respect of a development.

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How I considered this complaint

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

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My assessment

9. The Council issued Mr X a CIL notice for his development, which it granted planning permission for in 2019, in early 2023. Mr X contacted the Council to challenge the need to pay the CIL around March/April 2023 on the grounds the Council had taken too long to issue the notice and that it was not reasonable to expect him to pay it as he had no prior warning.
10. The Council responded to Mr X at the time explaining that his agent, acting on his behalf, had completed a CIL information form and submitted it with the planning application and that it would or should have been clear from the information on the form that the development may be liable for the CIL.
11. It acknowledged it had delayed in issuing the CIL notice, which it said was the result of an administrative error that had only just come to light, but said this had not disadvantaged Mr X because it had not imposed any surcharges or late payment interest. It explained there were no grounds to waive the requirement to pay the CIL and that it would not change its position. It set out Mr X’s ability to appeal on certain grounds and invited him to make a formal complaint if he was not happy with the Council’s responses/decision. It also told him about the Ombudsman and sent him a link to a decision about another case which involved payment of the CIL.
12. But Mr X continued to email the Council outside the complaints and appeals process until February 2024, when he raised a formal complaint. The Council issued its response approximately two weeks later but delayed in responding to Mr X’s ‘Stage 2’ complaint until 12 July 2024. All responses explained that the Council did not feel Mr X had suffered injustice from the delay in issuing the CIL and that the CIL remained payable. The Council also sent reminders for Mr X to pay the CIL, applied surcharges and late payment interest and applied for a liability order for the amount owed from the court.
13. Although Mr X has been aware about the delay in issuing the CIL notice since early 2023 he did not complain to us about it until 26 September 2024. His complaint is therefore late. I have seen no good reasons for the delay in bringing the complaint to us and consider Mr X had ample opportunity to do so in the 12 months from the date he received the CIL notice. I have therefore decided not to exercise my discretion to investigate the complaint.
14. It is in any event unlikely we could say the Council’s delay caused Mr X significant injustice even if we did investigate the complaint. This is because the development was always liable for the CIL and the Council did not impose any surcharges or late payment interest, meaning he had 3.5 years longer than he might otherwise have had, without needing to pay.
15. Mr X says he wouldn’t have gone ahead with the project had he known about the CIL sooner but his agent, with whom he contracted to deliver the project, should have known about this and advised him when entering into the contract. We could not decide, on the balance of probabilities, that Mr X would not have proceeded with the project had he known about the CIL and we could not say that the Council would have issued the CIL notice before Mr X entered into his contract with the agent anyway. We could not say the Council’s delay warrants waiving the requirement to pay the CIL and it is therefore unlikely investigation would achieve any worthwhile outcome for Mr X.
16. If Mr X disagrees with the Council’s decision to add surcharges and interest for late payment it would be reasonable for him to appeal to the Planning Inspectorate. These charges result from his refusal to pay the CIL and we would not therefore investigate any complaint about them.

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Final decision

17. We will not investigate this complaint. This is because the complaint is late and I have seen no good reasons to exercise our discretion to investigate it. It is in any event unlikely further investigation would achieve any worthwhile outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman