A Liability Notice must be served “as soon as reasonably practicable” after the day on which planning permission first permits development
A Liability Notice served two and a half years after permission was granted, addressed to the wrong recipient and lacking certain information, breached the CIL Regulations and was quashed. The High Court ruled that the claimant’s human rights would have been breached if she was required to pay CIL (R (Alison Trent) v Hertsmere Borough Council [2021] EWHC 907 (Admin)).
In another case, an inspector quashed a surcharge because the authority took 10 months after the grant of planning permission to serve the Liability Notice (PINS appeal decision: APP/L5240/L/20/1200423).
A Liability Notice can be served before receipt of the Assumption of Liability Notice
Even though the appellant hadn’t yet issued an Assumption of Liability Notice, there was no good reason for the authority to delay serving the Liability Notice for three weeks while it conducted a search to identify the registered landowner, as the authority was required to serve the Liability Notice on the person who had applied for the permission, (PINS appeal decision: APP/U2235/L/20/1200444).
Revised Liability or Demand Notices don’t extinguish accrued late payment surcharges
This is because liability to pay a late payment surcharge isn’t contingent on the service of a Liability or Demand Notice. Liability to pay CIL arises from the commencement of development and the power to impose a surcharge occurs if payment isn’t received within 30 days after the due date (London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government, Thornton Park (London) Ltd [2021] EWHC 1459 (Admin)).
CIL is triggered when a material operation comprised in the development is carried out
In one appeal, works to widen a vehicle access were not included in the development or plans approved by the permission nor were they controlled by any planning conditions; as such, CIL wasn’t triggered. However, in another appeal, as the demolition of a garage was included in the permission’s description of development, CIL was triggered (PINS decisions: APP/F1610/L/20/1200395 and APP/P0119/L/20/1200433).
Errors in a Commencement Notice or its submission can lead to it being invalid
A Commencement Notice must be submitted at least the day before commencement of development. An appellant came unstuck when he didn’t identify the Liability Notice in the Commencement Notice and accidentally dated the notice with the commencement date; the notice was invalid (PINS appeal decision: APP/K3415/L/20/1200446).
Another appellant’s builders submitted the Commencement Notice to the Council’s Building Control Department. But, as that isn’t part of the CIL Collecting Authority and the building control system is a separate statutory regime, the inspector upheld the surcharge for failing to submit the notice (PINS appeal decision: APP/L3815/L/20/1200448).
There are no mitigating circumstances for failing to submit a Commencement Notice
A Commencement Notice wasn’t submitted in three separate cases because:
(a) the architect employed to deal with CIL gave incorrect advice;
(b) the Liability Notice wasn’t received as the authority’s email with the notice attached most likely went into the junk mail box; and
(c) there was difficulty with the agent’s availability due to the pandemic.
Each inspector held that that they can’t take mitigating circumstances into account; on the facts the Commencement Notices weren’t submitted, so the surcharges were upheld (PINS appeal decisions: APP/U2235/L/20/1200435, APP/Y9507/L/20/1200441 and APP/C1435/L/20/1200440).
Commencing before receiving confirmation of receipt of the Commencement Notice is at the developer’s risk
No proof of postage or receipt of the Commencement Notice by the authority meant a surcharge for failing to submit a Commencement Notice was upheld. The onus to provide evidence of safe receipt is on the developer (PINS appeal decision: APP/J4423/L/20/1200456).
Self-build exemption isn’t available for retrospective planning permissions
The claim for a self-build exemption from CIL can only be made by someone who has assumed liability and before the development has commenced. As liability can’t be assumed until permission is granted and development is taken to have commenced on the date of the retrospective permission, it’s impossible for a self-build exemption claim to be made for retrospective permissions (Nathan Gardiner v Hertsmere Borough Council, Secretary of State for Housing, Communities and Local Government [2021] EWHC 1875 (Admin)). Similar issues arise for other reliefs requiring action prior to commencement.
Authorities can consider Section 106 affordable housing (AH) requirements when assessing whether sufficient evidence has been provided to qualify for social housing relief
In this instance, a S106 Agreement required exactly 35% AH to be provided. The developer wanted to provide 100% AH and claim 100% social housing relief from CIL. The S106 Agreement controlled the amount of AH that could come forward; as 35% was a fixed figure in this case, to provide more or less than 35% would have been unlawful. Unless 100% AH was permitted by the authority by way of a fresh S106 Agreement or a deed of variation, the authority couldn’t be satisfied that all of the dwellings would be qualifying dwellings for CIL purposes, to justify full relief. It’s important to draft the S106 Agreement carefully – if the authority can’t require the developer to provide the extra AH units it wants to deliver; social housing relief will not apply to those extra units (Stonewater (2) Limited v Wealden District Council, Secretary of State for Housing, Communities and Local Government [2021] EWHC 2750 (Admin)).
Being available for use isn’t sufficient to take advantage of the “in-use” exemption
The gross internal area of a relevant building that (a) has been in continuous lawful use for at least six months within the three years before the permission first permits development, and (b) is to be retained or demolished as part of the development, can be deducted from the area liable to CIL.
The appellants argued (amongst other things) that, as the existing pub remained a licensed premises and retained its facilities during the requisite period, it was legally available for use and qualified for the “in-use” exemption. The registered valuer disagreed. Being available for use isn’t equivalent to being in-use. The valuer also didn’t have discretion to take delays in the determination of the permission into account in the appeal (VOA decision dated 10 September 2021).
The “in-use” exemption will not apply to a building demolished before planning permission has been granted
The “in-use” exemption only applies to a “relevant building”, ie a building which exists on the day planning permission first permits development. Here, planning permission was granted for the replacement of a conservatory with a single storey extension and, following this, the appellant demolished the conservatory. No CIL was payable in respect of that planning permission as the minor development exemption applied – the new floorspace was less than 100sqm. The appellant subsequently obtained a Section 73 permission to add an extra storey. The registered valuer held that the Section 73 permission was CIL liable as the minor development exemption no longer applied given that the total new floor space would now be over 100sqm: reliefs and floorspace deductions are not taken into account when assessing the amount of new floorspace for these purposes. In any event, as the conservatory had been demolished before the Section 73 permission was granted, the “in-use” exemption didn’t apply (VOA decision dated 22 November 2021).
Ancillary residential accommodation can benefit from the minor development exemption
For CIL purposes, a dwelling is a building (or part) occupied or intended to be occupied as a separate dwelling. The minor development exemption doesn’t apply where the development comprises one or more dwellings – it’s irrelevant that there is scope to use a building as a dwelling. Accordingly, residential annexes can’t benefit from the exemption as these must comprise a new dwelling. But an outbuilding which has been granted permission for use as ancillary residential accommodation and where there is no evidence that it will be used as a separate dwelling (even if there is scope to), can benefit (VOA decision dated 2 September 2021).
Authored by: Caroline Stares.
