Summary: Mrs C complains the Council wrongly demanded a Community Infrastructure Levy payment for her self-build development and applied a surcharge. Mrs C says because of the Council’s fault she faces a large and unexpected payment plus legal costs which she has no means to pay. The Ombudsman cannot investigate the surcharge part of the complaint as Mrs C has used her right of appeal to the Planning Inspectorate and will not further investigate the Community Infrastructure Levy payment as we cannot achieve the outcome sought.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains the Council wrongly demanded a Community Infrastructure Levy (CIL) payment for her self-build development of £30,211.37 and applied a surcharge of £2,500. Mrs C says because of the Council’s fault she faces a large and unexpected payment plus legal costs which she has no means to pay.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

4. I read the papers provided by Mrs C and discussed the complaint with her. I have also considered the Council’s complaint correspondence. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

5. The Community Infrastructure Levy (CIL) is a planning charge introduced by the Planning Act 2008 as a means for local authorities in England and Wales to help deliver infrastructure to support the development of their area. It came into force on 6 April 2010 through the Community Infrastructure Levy Regulations 2010.
6. Development may be liable for a charge under the CIL if a local planning authority has chosen to set a charge in its area. Most new development which creates net additional floor space of 100 square metres or more, or creates a new dwelling, is potentially liable for the levy.
7. Some developments may be eligible for relief or exemption from the CIL. Strict requirements apply about the timing of the exemption process and in most cases a Commencement Notice (form 6) must also be served before commencing development for the exemption to apply.
8. A person may appeal against a surcharge (Regulation 117) imposed by the Community Infrastructure Levy collecting authority on the following grounds:

• the claimed breach which led to imposing the surcharge did not occur;
• the collecting authority did not serve a liability notice for the chargeable development to which the surcharge relates; or
• the surcharge has been calculated incorrectly.
• appealing against a surcharge will suspend its effect until the Planning Inspectorate has decided the appeal in question.

9. A person can also appeal against a decision by the levy collecting authority to consider that development has started (Regulation 118). Both these appeals must be made within 28 days of the surcharge and date of notice respectively. Finally, a person can appeal against a CIL stop notice within 60 days of the date the notice takes effect. All appeals are made to the Planning Inspectorate.

Key events

10. Mrs C’s development qualified for a self-build CIL exemption. As part of the process, the CIL regulations require a ‘CIL Form 6: Commencement Notice’ before development starts. Mrs C says she sent the required form by first class post to the Council before the development started.
11. The Council says it did not receive the required commencement notice and so withdrew the exemption. This meant the full CIL was payable and the Council also applied a surcharge.
12. Mrs C made a CIL appeal under Regulation 117 against the surcharge to the Planning Inspectorate. Mrs C says she sought legal advice to make this appeal and incurred additional costs in doing so. Mrs C says she was not aware the Planning Inspectorate would not look at the CIL payment itself as part of the appeal. This is regrettable, but I cannot say this was because of some fault by the Council. The grounds for appeal are publicly available and clearly set out and I note Mrs C sought her own independent advice at the time.
13. The Planning Inspector found that without any documentary evidence to prove postage, they could not be satisfied a commencement notice was submitted before works started on the development as required by Regulation 67(1). The Inspector concluded the alleged breach that led to the surcharge had occurred and Mrs C’s appeal failed.
14. Mrs C subsequently made a formal complaint to the Council. Within its complaint correspondence, the Council highlighted a signed declaration within CIL Form 7: Self-Build Exemption (Part 1) confirming the signatory had understood that: “My claim for exemption will lapse where a commencement notice is not submitted prior to commencement of the chargeable development to which this exemption applies.” The Council also refers to the Relief Claim Decision Notice which states that “CIL Form 6: Commencement Notice notifies Shropshire Council of the date that you intend to commence development. You must complete and return CIL Form 6: Commencement Notice to Shropshire Council prior to the commencement of development. Failure to do so is a disqualifying event.”
15. The Council also referred to guidance on the Planning Portal about CIL payments which stated: “The [self-build] exemption must be applied for and obtained, and a Commencement Notice must be received by the Collecting Authority, prior to commencement of the development (start of works on site)…Failure to follow the set procedures within the required timescales will mean that the exemption will not be obtained, or will be rescinded if previously obtained, and a full levy liability will be incurred.”
16. Mrs C told the Council she had also advised it of the start of works through its building control function. The Council confirmed the initial building control notice was submitted by an Approved Inspector in May 2017 and the Final Certificate was registered in August 2018. The Council explained the building control regime was legally separate from that of CIL and the receipt of such a notice did not satisfy the legal requirements of the CIL regulations which require a developer to ensure the Council receives a CIL commencement notice before starting work.

My consideration

17. Mrs C has exercised her right of appeal to the Planning Inspectorate and the Inspector clearly considered the issue at the heart of this complaint which is the submission of the commencement notice required by the CIL regulations. Mrs C says she sent the required form to the Council and the Council says it did not receive it. The Ombudsman has no power to investigate the Council’s application of the surcharge and cannot do so as this part of the complaint is caught by the restriction outlined at paragraph 3 above.
18. In relation to Mrs C’s contact with building control, I should explain there is no requirement for building control to routinely pass on information from applicants to other Council services unless expressly asked to do so. In any event, it is unlikely this would have been in a format that would satisfy the requirements of the CIL Regulations for a commencement notice.
19. I do not consider the issue of the surcharge is separable from the CIL payment. Although the Planning Inspector did not consider the CIL contribution itself under Mrs C appeal (as they could not do so), they did make a finding on the surcharge. The grounds on which Mrs C objects to both the surcharge and CIL payment are essentially the same.  Mrs C relies on sending the correct form to the Council to keep her CIL exemption and avoid the surcharge. The Council did not receive a commencement notice and it was for this reason it withdrew the exemption and applied the surcharge.
20. I also do not consider it is possible to establish some fault by Council led to the CIL payment Mrs C is now required to pay. We cannot establish, even on a balance of probabilities, the commencement notice was not received through some fault by the Council. It may have been prudent for Mrs C to check receipt or use recorded delivery given the consequences of non-receipt and the amount of money involved.
21. I have sympathy for the position Mrs C now finds herself in but, in these circumstances, I do not consider further investigation by the Ombudsman can achieve the outcome sought of the Council reinstating the exemption or waiving the CIL payment.

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Final decision

22. I have ended my investigation for the following reasons:
1. the Ombudsman cannot investigate the part of the complaint about the Council’s decision to impose a surcharge as Mrs C has used her right of appeal to the Planning Inspectorate; and
2. further investigation by the Ombudsman would not achieve the outcome sought of the Council reinstating the exemption or waiving the CIL payment.

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Investigator's decision on behalf of the Ombudsman