Summary: The Ombudsman found fault on Mr B’s complaint against the Council of it failing to tell him, when he applied for planning consent, that works already started by the previous owner meant this was a part retrospective application which in turn meant he was ineligible for Community Infrastructure Levy relief. The fault caused no injustice to Mr B.

The complaint

1. Mr B complains about the Council’s failure to advise him, when he first applied for planning consent, that works already done to the property he bought meant:
1. he was applying partly for retrospective planning consent; and
2. the works covered by the retrospective part of the application, meant the development had commenced, which resulted in him having no right to challenge its decision to demand he pay a Community Infrastructure Levy (CIL) of £17,300.
2. As a result, he spent time and money pursuing his unsuccessful appeal against the CIL which caused him and his wife anxiety, frustration, and inconvenience.

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The Ombudsman’s role and powers

3. 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)
4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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Community Infrastructure Levy Regulations 2010 (as amended)

5. The Community Infrastructure Levy is a charge local authorities can levy on new development in their area which creates a net additional floor space of 100 square metres or more or creates a new dwelling.
6. Some developments may be eligible for relief or exemption which includes residential houses and flats, for example, that are built by ‘self-builders’. There are strict criteria and procedures to meet to qualify for the relief or exemption.
7. A person on whom a demand notice is served, which states a deemed commencement date, may appeal. (Regulation 118(1))
8. Development is treated as starting on the earliest date on which any material operation begins to be carried out on the relevant land. (Regulation 7(2))
9. Development for which planning consent is granted under section 73A of the Town and Country Planning Act 1990, or granted or modified under section 177(1) of that Act, is treated as starting on the day planning consent for that development is granted or modified.(Regulation 7(3)) and Regulation 7(5)(a))
10. Material operation has the same meaning as set out in section 56(4) of the 1990 Act. This means any work of construction in the course of erecting a building, any demolition of a building, and any operation in the course of laying out or constructing a road or part of one. (Regulation 7(6))

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How I considered this complaint

11. I considered all the information Mr B sent, the notes I made of the telephone conversations I had with him and the planning officer, as well as the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr B and the Council. I considered their responses.

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What I found

12. In 2017, Mr B bought a property which had been used as part of a larger former business on site. He intended to convert it to a residence. During his purchase, he found out the property did not have planning consent for residential use and asked the Council for pre-application planning advice about whether it was likely to give consent if he applied.
13. He claims before he completed the sale, the business owners carried out works to separate access from its building from the property Mr B intended to buy. It erected a fence along it and demolished some small buildings. The business owners also agreed to provide his property with a separate water and electricity supply. This was after the same when Mr B realised it did not have its own electricity and water supply.
14. Based on the pre-application advice from the Council, Mr B bought the property as it said it was likely to grant consent should he apply. Due to his finances, Mr L could not do any works to the property although he installed some window lights in the roof and carried out some roof repairs.
15. After buying the property, Mr B applied for planning consent to use it as a residence (application 1) in 2017. He had not realised, and nor did the Council tell him, that his application was part retrospective. This was because of the access the previous owner created before Mr B bought it. Mr B complains the Council should have told him about this at the time as its failure to do so cost him financially. The Council granted consent 2 months later to change the property’s use from business to residential use.
16. In 2018, the Council served him with a CIL liability notice for just over £17,000. The following month Mr B applied for self-build relief. The Council granted it subject to conditions set out in the CIL regulations. One of the conditions was Mr B had to send the Council a commencement notice before works started. Shortly after this, Mr B sent another planning application to the Council (application 2). This was for an extension and some alterations to access. The Council granted consent.
17. In the summer of 2019, the business owners agreed to pay for and provide a direct water and electricity supply which were finally provided in October. Mr B confirmed to me the owners dug a trench alongside the new access this month. It was also in October the Council became aware works had started and sent him a CIL demand notice after revoking his relief. The full charge became payable. The Council said this happened because he failed to send it a commencement notice before starting works. As it did not know for sure when the works started, it took the commencement date as the date when it granted consent for application 1.
18. Mr B appealed its decision to the Planning Inspectorate who refused it in 2020 noting:

• consent on application 1 included not only a change of use of the property but, the construction of a new access to it;
• the access was created, but not completed, around the time Mr B bought the property and sent application 1;
• the access created was not temporary and was a material operation for which consent was needed;
• once Mr B had consent for application 1, the permission came in to immediate effect;
• the fact works were started by the previous owner was irrelevant; and
• ‘In hindsight, it may have been better to advise the applicants of the potential outcome to avoid any surprises and explain the serious consequences given the potential loss in relief’;

19. When the Planning Inspectorate reached its decision, Mr B realised the Council had failed to tell him, when he sent application 1, that part of it was retrospective to cover works already done, and what significance this had. This was important as the Planning Inspector found works associated with the change of use, including access, started before the Council received application 1.
20. In response to my enquiries, the Council:

• Refused to accept part of application 1 was a retrospective planning application. It argued neither the application form nor planning officer report say works had started. This meant officers had no reason to warn him of it being a part retrospective application or of any possible CIL liability; and
• It only became aware of the commencement of the works following an inspection of the site during annual housing projector work.

Analysis

21. I make the following findings on this complaint:
1. There is no evidence showing the previous owner had started or completed the access works at the time Mr B applied for pre-application advice in September 2017, a month before he bought the property. I conclude this because there is no mention in the pre-application enquiry form Mr B completed of the works. Nor are they mentioned in the pre-application decision the Council issued a week later. As these works were not declared on the enquiry form, this means I am not satisfied the Council, at this stage, needed to advise Mr B about the need for a retrospective planning application or give him advice about potential CIL liability if he later decided to apply for full consent.
2. There is no evidence showing the exact date when works on the accessway took place.
3. Although the Council disputes this application was in part retrospective, this argument has little strength because the Planning Inspector decided it was part retrospective. The Planning Inspector’s decision highlighted that as soon as Mr B sent application 1 and had it approved, he never had the right to claim CIL relief.
4. I now consider Mr B’s claim the Council should have advised him when he sent application 1 that part of it would be considered retrospective and the impact this would have on claiming CIL relief. In doing so, I took account of the evidence for and against the creation of the access at the time he applied.
5. Evidence against its creation before he applied for consent includes:

• The covering letter Mr B sent with application 1. This referred to a strip of land to be used for access which was currently part of a grassed garden within the businesses grounds. It made no reference to any existing access road. It gave no indication of access works starting.
• I saw nothing in the plans Mr B sent showing the built access road.
• I also took account of what the planning officer told me when we spoke. He does not recall seeing any newly laid access, demolition work of any building, or newly erected fencing when he visited the site while preparing his report.
6. Evidence for its creation before he applied for consent includes:
• The application form Mr B sent which states, ‘The accessway has been separated from the [business] grounds as has the grounds of the cottage, but is not developed’. In response to my enquiries, the Council denied the form mentioned this but, it does in part 14 headed, ‘Existing Use’. This statement is inserted on the form where it asked the applicant to describe the current use of the site. This should have alerted the Council to the need to explore the creation of an accessway.
• Mr B’s own account of the creation of the accessway before he bought the property.
• The Planning Inspector’s finding of its creation, but not completion, around the time Mr B bought the property and sent application 1.
• The Planning Inspector’s comments it would have been better for the Council to have explained the outcome and the resulting loss of relief to Mr B to avoid surprises.
7. On balance, therefore, I am satisfied the evidence supports Mr B’s claim of the creation of the accessway before he sent application 1. As a result, I am also satisfied this means the Council should have identified the accessway’s presence, and its significance to any CIL relief, during its consideration of application 1.
8. I am not satisfied this failure caused Mr B an avoidable injustice. This is because:
• Mr B bought in to a situation where he was aware the previous owner had carried out access works. He failed to check, or ensure before proceeding with the sale, the previous owner had received consent to do these works from the Council. This was a risk Mr B took when he bought the property;
• If he was unsure about the implication, and future implication, of the access works, he needed to discuss and explore this with the solicitor he used when buying the property. His solicitor could, for example, have placed the onus on the previous owner to apply for retrospective consent as a condition of the purchase; and
• When I spoke to Mr B, he told me his solicitor had advised him not to buy the property without the change of use planning consent.

22. In response to my draft decision, the Council again explained why it believes the application was not retrospective. This was because of the: pre-application enquiry response which noted the new access would be small in scale and did not include detailed plans; application 1 referred to ‘associated new access’ and he said works had not started; his declaration in section 14; on the same application, its Transport team commented until access was provided according to the sent plan, the property should not be occupied. Its view is the application was for a new access.

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Final decision

23. The Ombudsman found fault causing no injustice on Mr B’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman