Summary: We will not investigate this complaint about liability for a Community Infrastructure levy (CIL) because there is no evidence of fault by the Council and there is a right of appeal to a Planning Inspector.

The complaint

1. Mr X complains that the Council imposed a CIL on two properties and argues that the properties should have been immune.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector 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

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

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My assessment

7. Mr X converted a property in 2017 which was subject to an enforcement investigation by the Council but with no action taken.
8. An extension was proposed in 2022 to the property and the Council asked that a retrospective planning application be submitted to authorise the original work. The new planning application meant that a substantial CIL payment was owed.
9. The Community Infrastructure Levy (CIL) is a surcharge that councils can impose on new development in their areas. The surcharge only applies if the Council has a CIL policy, with details and rates on how the charge will be applied. Most new development that creates additional floor space of 100 square metres or more is likely to be liable for a charge.
10. Some developments may be eligible for relief or exemptions from the levy. Exemptions include developments built by ‘self-builders’.
11. It is possible to appeal against CIL charges, if:
12. The claimed breach which led to the charge did not happen;
13. The Council did not serve the CIL liability notice in relation to the development; and
14. The charge has been calculated incorrectly.
15. CIL charges are subject to statutory rights of appeal with the Planning Inspectorate and Valuation Office Agency. The Planning Inspectorate deals with appeals relating to liability for CIL and the Valuation Office Agency deals with appeals about the amount of CIL due to be paid.
16. Mr X argues that the Council should have advised him that no planning application was required as no enforcement action had been taken previously.
17. The Council argues that they were not obliged to give advice as to how to avoid payment of a CIL and Mr X was professionally represented.
18. I am satisfied that the Council acted without fault in seeking a retrospective planning application for unauthorised buildings. Whilst this incurred the payment of a CIL, I do not consider this to be the result of fault and the Ombudsman cannot therefore question the CIL.
19. Mr X does have a right of appeal against the imposition of the CIL to a Planning Inspector. The Planning Inspectorate is an independent, expert body whose decisions are binding on the Council. I therefore consider that it would be reasonable to pursue an appeal in this case.

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Investigator's decision on behalf of the Ombudsman