Advising clients in connection with Community Infrastructure Levy (CIL) is part and parcel of providing planning advice in local planning authority areas that have adopted a CIL charging schedule and where the payment of CIL has, in effect, become a tax on development. We are therefore alive to the fact that every failed CIL appeal is potentially a financial calamity for the developer.
That may well be the case in respect of a recent appeal decision (heavily redacted as always) that involved the redevelopment of a house and stables where, part-way through the works to add an extension to the house, the applicants said that what was left of the house was so unstable that, although it had not been their intention to demolish it, they found themselves having to do so and, instead, building what, in planning terms, was a completely new dwelling.
Unfortunately for them, the local planning authority enforcement officer turned up and, to avoid enforcement action being taken for what would have been an unlawful dwelling, they applied for and were granted (part retrospective) planning consent for the new dwelling. The local planning authority then issued a CIL liability notice on the grounds a) that self-build relief from CIL is only available if it is applied for before development commences and b) no-offset was available in respect of the floor area of the original house and it has ceased to exist (because it had been demolished) before the part retrospective planning consent had been granted.
The appellants did their best to argue that the previous planning consent that allowed the extension of the existing house included elements of demolition and that, in the context of their site, what they had done was more in the way of development rather than demolition as parts of the original house remained on site. The local authority produced photographs taken by the enforcement officer that it said showed clearly that the original house had, as a matter of fact, been demolished and the new house partially constructed before the grant of the part retrospective planning consent.
The Appointed Person was not persuaded by the appellants’ arguments and dismissed their appeal.
The take-home point from the above is that, since the introduction of CIL, there is a strong financial incentive to make sure that the various exemptions and/or offsets are in place before development or demolition takes place because, for the purposes of CIL, once buildings no longer exist it is as if they never existed and any offsets that may have applied can never be recovered.
