As our regular readers will know, for development that triggers a liability to Community Infrastructure Levy (CIL) that liability is reduced where there are existing buildings that have been in a lawful use prior to the grant of planning consent that are to be demolished as part of the proposed development. That offset is calculated on a floor area basis and the formulae are contained in Schedule 1 of the The Community Infrastructure Levy Regulations 2010 (The CIL Regulations).
Paragraph (9) of Schedule 1 says that, where the collecting authority does not have sufficient information, or information of sufficient quality, to enable it to establish whether part of a building is eligible for the existing buildings offset and/or, if it is, its gross internal area (GIA), it may deem the GIA of the part in question to be zero.
Paragraph (9) of Schedule 1 of the CIL Regulations was in play in a recent CIL appeal. The case involved a phased development that included the demolition of two existing cottages and the construction of four new dwellings. There were four separate planning applications that gave rise to four CIL assessments, four separate CIL liability notices and four CIL appeals. It was agreed that the existing cottages had been in a qualifying lawful use and that the offset was therefore available as a matter of principle but the collecting authority (CA) (aka the local planning authority) had found it difficult to identify which parts of the existing cottages to be demolished fell within each phase of the development and, accordingly, the gross external areas that were available for offset within each phase.
In an attempt to clarify the position, the CA prepared its own plan which it sent to the developer. That plan stated that it was not to scale and could not be relied upon for apportionment purposes. In responding, the developer did not prepare its own plans. Instead, it marked up the CA’s plan to show the apportionment and provided gross internal areas which had been measured by an architect. The CA concluded that that information was insufficient and used a deemed gross internal area of zero to calculate the CIL liability offset in reliance on Paragraph (9) of Schedule 1.
The developer appealed to the Valuation Office Agency. The Appointed Person (AP) also requested clarification from the developer. In its response, the developer challenged the approach of the CA which was that scale plans, prepared in accordance with the Royal Institution of Chartered Surveyors’ code of measuring practice, are required in order to check and calculate the GIA of the existing buildings and to apportion any potential offset between the phased developments correctly. The developer continued to rely on the CA’s plan that it had marked up to show the apportionment and the GIAs. In response, the CA reiterated that scale plans of the existing cottages (to be demolished) had not been provided and the location of the existing dwellings and the location of the new, proposed dwellings also needed to be shown to calculate the precise GIA of the existing buildings and to apportion the existing floorspace to each CIL liability notice.
The AP agreed with the CA that the developer had provided insufficient information and that Paragraph (9) of Schedule 1 of the CIL Regulations applied. The appeals were, accordingly, dismissed.
As ever, the CIL appeal decision is heavily redacted and it is not possible to glean any of the background information. However, on the face of it, it is inexplicable why a developer, properly advised, would not obtain a detailed measured survey both as part of a planning application and to support what would otherwise have been a reduced liability for CIL.
