Two Into One - combining two separate planning consents to attract CIL?

A recent High Court ruling involving Swindon Borough Council and a shopping centre operator gives guidance as to whether it is legitimate for a local authority to treat two separate planning consents as a combined consent and then on the basis of such a combined consent to be able to charge Community Infrastructure Levy on the combined development.

The case involved two separate planning applications in relation to a unit at a shopping centre in Swindon. The first application was to carry out external works without any increase in floor space. The second application was to increase an existing mezzanine floor area within the unit. Both were separate applications and determined when a CIL levy was in place.

The Council approved both applications and attached a statement to the mezzanine floor application that it was a development liable to CIL. The council based this view as it had linked this application with that of the external works. This approach was an attempt to ensure that the mezzanine floor attracted CIL.

It was agreed by the parties that by virtue of regulation 6(1)(c) of the Community Infrastructure Levy Regulations that the granting of the mezzanine consent on its own would not have given rise to the payment of CIL, it was only by combining the two applications that the Council considered that CIL was liable. There was an amount of £170,900 at stake.

In the course of the proceedings it was admitted by the shopping centre operator that their Strategy was deliberately designed to avoid the payment of CIL.

In reaching judgement the court declared that:

  • There is nothing in the CIL regime to prevent the splitting of developments.
  • The developments in two permissions could be commenced at different times and there is nothing in the regulations to cater for a 'combined permission'.
  • The CIL regime is a taxing regime and the local authority does not have a discretion as to who is to be subject to the tax or the amount.

In summary there was no power to treat the two permissions as one and therefore the approach of the Council was unlawful.

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