Community Infrastructure Levy (CIL) – two recent appeal decisions
Written on 24/04/2018 by Holmes and Hills, Solicitors www.holmes-hills.co.uk
We continue to see CIL issues, including draconian measures applied for what a lay person may consider to be inconsequential or innocent breaches. Where CIL is concerned however, the appeal decisions increasingly demonstrate that the law is the law and, unless there is strict compliance, the end result is usually unsuccessful appeals as far as surcharges and CIL penalties are concerned.
This is perhaps as best illustrated by two recent Planning Inspectorate decisions.
In the first the alleged failures were to assume liability for the Community Infrastructure Levy (CIL) and the failure to submit a commencement notice before commencing works on chargeable development. Although the appellant acknowledged that he did fail to assume liability or submit a commencement notice, he alleged that this was because he received poor and confusing communication in telephone conversations with the collecting authority (‘Council’). In simple terms, it was the Appellant’s case that had he received clear guidance the situation would have been avoided.
The Inspector found that “In the absence of any documentary evidence before me it is not possible to conclude that the appellant was given confusing or incorrect information regarding his CIL responsibilities. I can only consider the appeal on the known facts”. The facts were very much that the Appellant had failed to comply with the statutory requirements, with the Inspector further commenting “it was clear from the correspondence that the appellant was in danger of having to pay surcharges if he did not comply with the requests for submission of the notices. I consider the appellant’s decision to ignore these warnings was a risky strategy to take”.
The appeal was therefore dismissed and the Appellant required to pay the CIL surcharges levied by the Council.
In the second the allegation was that the Council has issued a Demand Notice with an incorrectly determined deemed commencement date. The description of the development in the grant of permission clearly included demolition. The Appellant acknowledged that demolition works had commenced but argued that they were only carried out to enable retaining wall structures to be constructed in relation to the planning permission and did not commence works on the CIL development.
Regulation 7(2) CIL explains that development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land. Section 56(2) of the Town and Country Planning Act 1990 (TCPA 1990) explains that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(4) TCPA gives examples of what “material operation” means and includes “any work of demolition of a building”.
The result? The appeal was dismissed. The Inspector was satisfied that there has been a deemed commencement and, absent the Appellant submitting a commencement notice, the council could impose a surcharge – which the Appellant was liable to pay.
We have emphasised before the importance of complying with the CIL Regs and being clear about deadlines and when, and which, forms need to be submitted etc. We do recommend that you obtain proof of submitting CIL forms etc. because (as explained at Holmes & Hills’ 2017 Planning Law Update seminar series) a Planning Inspector is unlikely to help you out unless you can prove what was sent and when [so use emails or recorded delivery, or deliver in person and get receipts(!)], or what you were told and when [so keep a record of what has been said and by whom] and it is only this documentary evidence that could “save your bacon” at a later date.
That said, following Holmes and Hills’ input one London Borough has agreed that, despite its original position to the contrary, a valid request for abatement (or credit for CIL payments already made under one permission, permission A, towards another, permission B which was to be commenced in place of A moving forwards) was made and which, in practical terms means that the client is not required to pay just short of £30,000 twice over (i.e. once for permission A and once for B).
At Morley Riches & Ablewhite we are able to advise you of the impact of CIL on the viability of your development. Speak to our expert on this subject, Peter Riches.