Summary: The Council was at fault for delays in considering a planning application which Mr B says caused him financial loss in the form of a new levy. However, the Council has confirmed an exemption was granted for Mr B’s development meaning the levy is not payable. The Ombudsman has therefore completed the investigation with a finding of fault, but which has not caused injustice to Mr B.

The complaint

1. The complainant, who I refer to as Mr B, is complaining about a delay in approving his planning application. Specifically, Mr B says the Council delayed in:
1. drafting a section 106 agreement and;
2. identifying an issue as to the ownership of land.
2. Mr B considers these delays resulted in him incurring liability to pay the Community Infrastructure Levy which was introduced by the Council on 1 April 2020. Mr B says the Council’s fault has resulted in financial loss as he stands to pay the fees of around £8,000. As a desired outcome, Mr B wants the Council to waive the fees.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).

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How I considered this complaint

4. I have reviewed Mr B’s complaint to the Ombudsman and Council, including his supporting documents. I have also had regard to the responses of the Council, the planning application and applicable legislation and policy. Both Mr B and the Council received an opportunity to comment on a draft of my decision.

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What I found

Background

5. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district council or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a period of consultation.
6. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

1. delay by an authority in deciding an application for planning permission;
2. a decision to refuse planning permission;
3. conditions placed on planning permission and;
4. a planning enforcement notice.

7. Agreements made under section 106 of the Town and Country Planning Act 1990 (TCPA 1990), are between developers and LPAs. These require developers to contribute towards a range of infrastructure and services, such as community facilities, public open space, transport improvements and/or affordable housing.
8. The Community Infrastructure Levy (the ‘levy’) is a charge which can be levied by local authorities on new development in their area. It is a tool for local authorities to use to help them deliver the infrastructure needed to support development in their area. The levy only applies in areas where a local authority has consulted on, and approved, a charging schedule which sets out its levy rates and has published the schedule on its website. Most new developments which create net additional floor space of 100 square metres or more, or creates a new dwelling, is potentially liable for the levy. The Council introduced the levy on 1 April 2020.

Chronology of events

9. In December 2020, Mr B submitted a planning application to the Council for the development of land.
10. In January 2020, Mr B requested the Council prepare a section 106 agreement which was necessary before planning permission could be granted. The Council agreed to begin drafting the agreement and confirmed it instructed its solicitor in this respect in February 2020.
11. Between January and April 2020, Mr B wrote to the Council to determine what progress had been made as regards to the section 106 agreement. However, it is accepted by the Council that there were failings in making initial contact with Mr B and this resulted in delays to the process. Further, the Council discovered a problem with the land ownership of the site subject to the proposed development. Specifically, the Council’s result of the land register search was that it found that there was insufficient evidence Mr B owned all of the land within the planning application site. The Council wrote to Mr B explaining these issues.
12. In May 2020, Mr B’s and Council’s solicitors conducted further enquiries in relation to the issue of land ownership. It was later agreed that the ownership of the land in dispute would be excluded from the planning agreement and revised drawings were therefore submitted. However, this required the submission of amended development plans. On receipt of these, the Council completed the section 106 agreement and provided it to Mr B. Separately, it was acknowledged by the Council’s solicitor that there has been a delay in responding to Mr B due to her being on a period of sick leave between April and June 2020.
13. In June 2020, the Council approved Mr B’s planning application, and the Council applied the levy. However, Mr B is of the view the issues of land ownership should have been identified much earlier in the process. Further, he considers that the Council delayed in providing the agreement which in turn gave rise to avoidable liability in the form of the levy.
14. In November 2020, Mr B was informed that a self-build exemption was granted for the development. This means the levy will be £0, provided the correct forms are submitted.

My findings

15. Considering the scale of Mr B’s development, it would likely not be considered major for the purposes of the Order. Therefore, the statutory determination period for the Council to issue a decision would be 8 weeks from the date a valid application was submitted. The Council has accepted there were delays in making initial contact with Mr B for which it has apologised for. In my view, there were also delays between April and June 2020 by reason of the Council’s solicitor being on a period of sick leave. The delays constitute fault by the Council. Moreover, I consider it likely planning approval would have been given prior to the introduction of the levy, but for the fault.
16. However, the Council has since confirmed Mr B was informed that a self-build exemption was granted for the development. This means the levy will be £0, provided the correct forms are submitted by Mr B. On this basis, Mr B has not suffered a significant injustice, since the levy is not payable.

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Final decision

17. The Council was at fault for delays in considering the planning application. Mr B said this caused him financial loss in the form of a newly introduced levy. However, the Council has confirmed an exemption was granted for Mr B’s development meaning the levy is not payable. I therefore propose to complete the investigation with a finding of fault, but which has not caused injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman