Summary: We will not investigate Mr X’s complaint about the Council’s decisions on the Community Infrastructure Levy (CIL) sums due in relation to his planning applications, it not telling him how to appeal, not giving him the evidence it used to make the first CIL decision for a year, and its delay in deciding his planning applications. Mr X had appeal rights to the Valuation Office Agency (VOA) on the CIL matters. That was the body better placed to consider those issues. It was reasonable for Mr X to use his appeal rights to the Planning Inspectorate on the Council’s decision about his development commencement date, and on the grounds of non‑determination regarding delays in deciding his planning applications. We also cannot achieve the key outcome Mr X seeks.

The complaint

1. Mr X applied for and received planning permissions to develop an existing building as a residential dwelling. His permissions attracted Community Infrastructure Levy (CIL) payments. The second planning permission increased the area of the development granted by the first permission.
2. Mr X complains the Council:
1. unreasonably decided he had commenced his first planning permission before applying for his exemption from the CIL as a self-builder;
2. failed to tell him how to appeal against the first CIL demand;
3. delayed for a year in giving him the evidence it used to make its decision that he had commenced his development before making his CIL exemption application;
4. has issued a second CIL for the larger development but is unfairly refusing to reduce it by the CIL sum he already paid in relation to the first application;
5. delayed in deciding his first and second planning applications.
3. Mr X says:

• the Council’s decision on the first CIL meant he had to pay over £7,000, for which he had to take out a loan;
• the Council not providing the evidence they used on the first CIL decision meant he could not appeal against it;
• the delays in the Council’s planning decisions delayed his development;
• the Council’s demand for the second CIL on the larger development means he would pay over £7,000 twice for the square metre area from the first application.

4. Mr X says the situation has had an impact on his finances for the development and caused him concern. He wants the Council to reflect the sum he has paid under the first CIL within the second CIL demand, allow him to pay that reduced sum in instalments, and review its planning system.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:
• there is another body better placed to consider this complaint; or

• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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)
7. The Planning Inspectorate acts on behalf of the responsible government minister. The Inspectorate considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission;
• a planning enforcement notice.

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How I considered this complaint

8. I considered information from Mr X, relevant online planning documents, CIL information and the Ombudsman’s Assessment Code.

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My assessment

9. The CIL levy is calculated using the square metre area of a development. The process follow the Community Infrastructure Levy (Amendment) Regulations 2014. Councils’ role is to collect the money due under the process. They do not have discretion to step outside the regulations. Applicants have appeal rights if they dispute various aspects or outcomes of the CIL process.
10. Mr X made his first planning application in 2021 which was granted in 2022. He served an ‘Assumption of Liability’ notice on the Council which confirmed he was responsible to pay any CIL due. He advised the Council the development works had started the month before. The Council rejected Mr X’s application for a CIL exemption based on him being a self-builder and billed him for the full CIL. The CIL regulations state a self-build applicant cannot receive an exemption if the development works have commenced. Mr X says the Council’s refusal of the exemption was unreasonable. He says works which have been deemed to be commencement of the development were repairs to protect the property, and possible protected species using the property, after bad weather.
11. Mr X had a right of appeal on the CIL exemption matter to the Valuation Office Agency (VOA). The 2014 CIL Regulations advise applicants that an appeal against a refusal of an exemption is a matter for the VOA, so it is the body better placed to consider this issue. Mr X could have used that appeal right when he received the Council’s 2022CIL bill. The VOA is specifically appointed by law to consider these CIL issues. It would be inappropriate for us to investigate this matter now so we will not do so.
12. Mr X says he could not appeal against the Council’s first CIL invoice because it did not send him the evidence it had used to decide he had commenced development works until a year later. But his appeal was not reliant on that information being given to him. Mr X lodging a VOA appeal would have required the Council to provide its evidence in response to the appeal.
13. Mr X also says he could not appeal because the Council did not tell him about those appeal rights. But the copy CIL invoice Mr X sent with his complaint refers to the VOA and provides a link to the appeals procedure. So Mr X was informed of his appeal rights and they were available for him to use.
14. If Mr X wanted to contest the Council’s decision that he had commenced the development before he made his CIL exemption application, despite what he stated on his CIL liability form, he could have appealed. The 2014 CIL Regulations provide an appeal right on such disputes. They are considered by the Planning Inspectorate. It would have been reasonable for Mr X to use that appeal route as the Inspectorate is the body specified by the relevant regulations to consider such matters.
15. Mr X submitted a second planning application for the same property in 2022. The proposal increased the area of the development. The Council granted permission in 2023 and issued a second CIL invoice for almost twice the original CIL sum. Mr X considers the second CIL should take into account the sum he paid for the first application. The Council says the account on the first CIL matter was closed when Mr X paid it, which he did after he received the second CIL invoice, and says he owes the full sum on the second CIL.
16. The 2014 CIL Regulations provide an appeal where an applicant disagrees with an authority’s calculation of the chargeable CIL amount. Where the authority’s calculation does not change after a review, the applicant has an appeal to the VOA. As with the first CIL invoice, the VOA is appointed by law to consider this issue, and is the body better placed to consider it. We cannot resolve this dispute. It was for Mr X to have used that VOA appeal right when he received the Council’s second CIL bill and it would be inappropriate for us to investigate this matter now.
17. The Council delayed in deciding Mr X’s first and second planning applications, taking longer than the usual eight-week timescale. Mr X says these delays affected his development plans. But as a planning applicant Mr X had further rights of appeal on this issue. Once the statutory decision-making period had passed, and if he did not agree an extension of that period with the Council, he had a right of appeal to the Planning Inspectorate on grounds of the Council’s non-determination of his applications. The Inspectorate would then consider the applications afresh. It would have been reasonable for Mr X to use those appeal rights at the time and we will not investigate this part of the complaint.
18. We recognise may not now be able to appeal in time to the VOA or Planning Inspectorate. But it was for Mr X to apprise himself of the CIL regulations and the planning process before making an application, including the relevant appeals and appeal bodies. There is an onus on applicants to learn about the rights and responsibilities related to their involvement in the planning process. The VOA’s and Inspectorate’s timescales and processes are available to all applicants online. Alternatively, applicants may choose to instruct a planning expert to act on their behalf. Where Mr X’s in-time appeal rights have lapsed, that is not a reason for us to investigate.
19. Mr X wants the Council to reduce the sum payable under the second CIL invoice. But we cannot determine whether that sum is correct. It is a matter only the VOA could decide. That we cannot achieve this key outcome from Mr X’s complaint is another reason why we will not investigate.

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Final decision

20. We will not investigate Mr X’s complaint because:
• the VOA was the formal appeal body better placed to consider his concerns about CIL exemptions and bill amounts through appeals, which were available for him to use; and
• it was reasonable for him to appeal to the Planning Inspectorate on the decision about his development commencement date, and on grounds of non‑determination regarding the delays in deciding his planning applications; and
• we cannot achieve the key financial outcome Mr X seeks.

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Investigator's decision on behalf of the Ombudsman