Navigating the right path to escape the CIL maze unscathed
Friday, 30th September 2016
Recent appeal decisions published by the Planning Inspectorate have highlighted the appeal process under regulations 117 to 119 of the Community Infrastructure Levy ("CIL") Regulations 2010 and the importance of adhering to the mechanics of the procedures set out within the CIL Regulations 2010.
In a recent appeal decision, the Appellant lost his right to the self-build exemption. The collecting authority received the Commencement Notice from the Appellant on 13 March 2015, detailing that works were to start on the site on 16 March 2015. The collecting authority asked for the Commencement Notice to be withdrawn due to time constraints in providing a decision but it was not evident that the Notice was withdrawn and a photograph showing works occurring on 7March 2015 triggered a Demand Notice recording the date of commencement of development as being 16 March 2015. The Appellant disputed the commencement date but did not explain the photograph dated 7 March 2015 showing diggers on site and groundworks having been undertaken. It was decided that material operations took place at the point at which the groundworks had begun on 7 March 2015. The collecting authority had not issued a Demand Notice with an incorrectly determined deemed commencement date. Therefore, the Appellant was not granted the self-build exemption and was liable to pay CIL (possibly in excess of 10,000).
A further appeal dated 19 August 2016 regarded a dispute against a surcharge imposed by a London Borough Council for late payment of the CIL due to failure to submit a Commencement Notice before works commenced on the development on 1 June 2015. The Appellant argued that he submitted a Commencement Notice on 10 April 2015, however "it may have failed to be delivered by the Post Office" as the Council never received it. When the Appellant did not receive acknowledgement of receipt for the Commencement Notice or a Demand Notice, it was their responsibility to contact the Council for an update. The appeal was dismissed and the surcharge for CIL consequently upheld.
Finally, in an appeal dated 5 November 2015, the Appellant disputed a surcharge imposed by Southampton City Council as a result of not submitting a Commencement Notice. Although a Liability Notice was served by the Council, it was served on the previous owner of the land and not the Appellant. However, the Liability Notice was registered as a local land charge at the time it was served, which bound the land and owner and any successor in title. It was decided that the Liability Notice was correctly served and the Appellant failed to submit the Commencement Notice before works began on the site. The appeal was dismissed and the surcharge upheld. For this appeal and that at 19 August 2016 (see above), the surcharge would be equal to 20% of the chargeable amount or 2500, whichever is lower.
These appeals, amongst others, are a useful reminder to those responsible for providing the relevant authority with a Commencement Notice before any works are initiated on a development site. They highlight the threshold for what is considered to be a 'material operation' carried out on the relevant land and commencement of development. The onus is on the developer to submit a Commencement Notice prior to any material operation on a development site and to keep receipt of any submissions made to any CIL collecting authority.
These and other cases considered when writing this article illustrate a distinct lack of discretion on the part of a CIL collecting authority and the importance of ensuring that the procedures and timings within the CIL Regulations are strictly adhered to. Some of the Planning Inspectors, whilst expressing some sympathy with the appellants, were unable to arrive at any other conclusions other than to uphold the CIL collecting authority's decision.
This article was written by Graham Cridland and Holly Lawrence.