Another appeal decision from the world of Community Infrastructure Levy (CIL) includes an interesting reminder of what constitutes a phased development for the purposes of calculating a developer’s liability for CIL.
Our usual detective work to go behind the heavily redacted appeal decision concludes that, on 31 October 2024, planning consent had been granted by Wokingham Borough Council (WBC) for “the proposed erection of a part single, and part two storey extensions. Consisting of a single storey side and rear and two storey gable end front extensions. Alterations to three cottages including provision of rear dormers and changes to fenestration. Following any required demolition of outbuildings / additions, Provision of three car ports, widening of access, landscaping. (As part of phased development)” at 22- 24 Smallmead Cottages Kirtons Farm Road Pingewood Wokingham RG30 3UT. The approved plans included one titled “Phasing Plan – Site Plan” which colour coded what were shown as 4 phases of development.
According to the CIL officer, the scheme resulted in a net increase in floorspace of 448.32 sqm which was not disputed. WBC issued a CIL liability notice accordingly.
However, the developer claimed that the approved scheme was “phased development” and that each phase should be separately assessed for CIL in accordance with planning practice guidance and Regulation 8(3) of the The Community Infrastructure Levy Regulations 2010. Fortuitously for the developer, each phase of the approved development involved the creation of less than 100 sqm of additional floorspace which the developer argued was below the de-minimis amount with the result that no CIL was payable. The developer relied on the approved plan that showed the different phases of the development in reliance of its case.
WBC said that, notwithstanding the approved plan, there were no planning conditions that actually required the development to be carried out in separate phases and that there were no planning reasons why phasing was necessary. It said that, in practice, it was a single scheme and the developer could carry it out either as a single scheme or in no particular order of phases if it wished to do so. The inference in the arguments – although not explicit in the appeal decision – is that the only reason that the developer and/or their consultant had notionally carved the development up into separate phases was to avoid the payment of CIL.
The Appointed Person accepted WBC’s arguments and refused the appeal. Although that outcome may not be a surprise in the circumstances of this case, there may well be very good practical reasons in other cases why it may be appropriate either to obtain a single phased planning consent or separate planning consents for different elements of smaller developments, including in terms of managing the CIL liability. That is particularly the case where, for example, separate dwellings will be sold to different purchasers and/or where a development includes both chargeable and non-chargeable works. Some local planning authorities also recognise the cashflow issues for smaller developers and individuals that act as a brake on development. A good example is Cornwall Council which provides excellent advice on phased development and CIL here.
