Summary: We will not investigate Mr X’s complaint about the Council’s administration of a community infrastructure levy charge. Mr X has had rights of appeal it would be reasonable to use against the Council’s calculation, the deemed commencement date and a surcharge imposed. Any matters of alleged unlawfulness are ones only a court could determine, and it would be reasonable to seek any finding of unlawfulness by going to court.

The complaint

1. Mr X said the Council failed to properly serve a community infrastructure levy (CIL) notice. He said this undermined his ability to appeal or claim lawful deductions. He said the Council did not tell him that a building had to be “in situ”, prejudicing his right to deduct existing floorspace. He said enforcement was based on a commencement date that preceded valid service of a notice. He said the Council took too long to disclosure evidence of delivery records.

Mr X wanted the council to withdraw the current demand notice and surcharges.

The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council’s response to Mr X’s complaint defended the service of the CIL liability notice and sent confirmation of how it was served, as well as presenting its view about the demolition of a property at the development site. Mr X disputes this, and says the Council’s actions since 2022 have undermined his right of appeal. I note nonetheless that the Council reissued the original notice and that Mr X has had notice of his appeal rights. Given the scale of the building work undertaken and the potential financial implications, I would also expect Mr X to have taken his own advice.
7. There is a right of appeal under Regulation 114 of the CIL Regulations 2010 to the Valuation Office for Agency (VOA) against the calculation of the CIL by a planning authority. There is also a right of appeal to the Planning Inspector against the deemed commencement date under Regulation 118. And there is a right of appeal to the Planning Inspector against the surcharges imposed under Regulation 117. The matters Mr X complained of could reasonably have been appealed against.
8. I note Mr X referred to legal judgements in his complaint to the Council, and that the Council rebutted the application of these judgements to his case. We cannot take a view about lawfulness. Only a court can do that. It would therefore be reasonable for Mr X to go to court if he takes the view that the Council has acted unlawfully.

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Final decision

9. We will not investigate Mr’s complaint because he has or had rights of appeal it would be reasonable to use. And any matters of disputed lawfulness could only be determined by a court, so it would be reasonable for Mr X to go to court if he wishes to dispute lawfulness.

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Investigator's decision on behalf of the Ombudsman