The Planning Inspectorate (PINS) is now publishing CIL appeal decision notices on its decision webpage in a redacted anonymous form. This is in an attempt to provide useful information about CIL regulations. Appeals can be shared and any precedents will hopefully be more widely understood.
CIL is a planning charge governed by the Community Infrastructure Levy Regulations 2010 (as amended) (CILR 2010), it was introduced nationally in April 2010. It is a levy that the Council can impose on new residential extensions, developments and new commercial developments in the local area. Funds generated by CIL are used to support growth and development within the area (i.e. development of new or safer roads, flood defences and park improvements).
The Council sets out its levy rates in a charging schedule and the overall cost to landowner’s who are liable for CIL is often significant. Moreover, if the CIL process is not followed correctly, Landowner’s can face further costly surcharges and interest payments.
CIL is an area which can cause dispute. CILR 2010 sets out certain circumstances in which appeals can be made against a surcharge. Appeals can also be made against any decision by the Council where the landowner disagrees with the deemed commencement date given in a CIL Demand Notice. The issue of a CIL stop notice may also be appealed where the collecting authority did not serve a warning notice before imposing the CIL stop notice, or the development for which the CIL stop notice was imposed has not commenced.
On 3 February 2017, PINS published six decisions on appeals made under the CILR 2010. One of the decisions publicised related to an Appeal dated 2 December 2016 brought by a Mr and Mrs Noble, on the grounds that that the claimed breach which led to the imposition of a surcharge did not occur.
The Nobles development was described as “the demolition of existing & new build of a single dwelling” and they were liable to pay CIL. A Liability Notice was issued to the Nobles on 16 November 2015 which set out the charge due and details of the payment procedure. A Demand Notice was served on the Nobles on 12 September 2016 relating to an outstanding surcharge for failure to submit a Commencement Notice.
Regulation 67 (1) CILR 2010 explains that a Commencement Notice must be submitted to the collecting authority no later than the day before the day on which the chargeable development is to be commenced. Regulation 83 CILR 2010 states that where a chargeable development is commenced before the collecting authority has received a valid Commencement Notice, the collecting authority may impose a surcharge equal to 20 per cent of the chargeable amount payable or £2,500, whichever is the lower amount.
The Nobles contended that the breach did not occur and that they hand delivered a completed Commencement Notice to the Council office post box on the weekend of 30/31 July 2016. It appears the Nobles intention was to begin demolition works in the week beginning 1 August 2016, although the Council determined the deemed commencement date to be 25 August 2016. Nevertheless, the Nobles argued that the Council were correctly notified in advance of the works beginning. The Council however, contended that they could not find any record of receipt of the Commencement Notice from the Nobles within its offices.
The duty was on the Nobles to ensure a Commencement Notice was submitted at least one day before works were due to commence. Planning Inspector Ken McEntee, in providing his decision, suggested that given its importance and the fact that the Nobles could potentially have faced a surcharge payment, it was not unreasonable to expect them to have contacted the Council on the following Monday, before starting works, to check that the Council were in safe receipt of the Commencement Notice and to obtain written confirmation. He took the view that to begin works without taking such steps, was a risky strategy.
Whilst it was acknowledged as being very unfortunate if the Nobles did take the trouble to hand deliver a Commencement Notice to the Council’s offices, in the absence of any documentary evidence to support their claim, it was not possible for Mr McEntee to reach a decision in their favour. Mr McEntee could not be satisfied that a Commencement Notice was submitted to the Council before works began on the chargeable development as required by CILR 2010.
The appeal was dismissed and the CIL surcharge was upheld.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact John Mills