A recent appeal decision from the world of The Community Infrastructure Levy Regulations 2010 (the CIL Regulations) highlights what can be unforeseen pitfalls where temporary consent has been granted for mobile homes as agricultural or other worker dwellings and, as happens not infrequently, there is “mission creep” that turns what was a mobile temporary dwelling into a permanent dwelling.
Planning consent had been granted for the ‘siting of a temporary worker’s dwelling’. The temporary dwelling was a mobile home and a planning condition stated the mobile home had to be removed and the land restored to its original condition on or before three years from the date of the permission. A second planning permission was subsequently granted for ‘the change of use of land for the temporary siting of a rural worker’s dwelling’. The second planning permission also included the construction of an extension. A planning condition was again applied, stating the mobile home must be removed and the land restored to its original condition on or before three years from the date of that permission.
The extension approved under the second planning consent had been built. It had concrete foundations and was attached to the mobile home. The whole structure was also connected to underground services and there was a brick plinth around the building and two sets of brick and concrete steps, which, according to the “appointed person” determining the appeal, would lead a bystander to view the structure as a permanent building.
A third planning application was then submitted for “the permanent retention of a rural workers dwelling”. That application was approved by the local planning authority (LPA) which then, as the CIL charging authority (CA) issued a CIL liability notice.
The applicant appealed the CIL liability on the grounds that a) the extension could easily be removed from the mobile home and, being mobile, it was not a building for the purposes of the CIL Regulations and/or b) because the dwelling was already lawful as a result of the previous planning approvals, it was a lawful “in use” building so the floor area could be offset against any new CIL liability. Under either analysis the CIL liability would have been nil.
The CA argued that adding the extension had made the dwelling permanent as a matter of law (applying the decision of the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] 2 PLR 102) and had also made it larger than the maximum width (20 metres by 6.8 metres) in order to be classified as a ‘caravan’ and caused it to fail the mobility test under the Caravan Sites Act 1968. It also said that under Regulation 1 (10) (iii) of Schedule 1 of the CIL Regulations, no CIL offset is available for a building for which planning permission was granted for a limited period.
The appointed person agreed with the CA and dismissed the appeal.
It is in the nature of what we do that when we see cases like this we ask ourselves what may have been done differently to achieve a better result for the client. Based on the factual matrix in this case, the dwelling had been in situ for at least six years before the third planning application was made and approved. From the appointed person’s description, it may also have been connected to underground services and had the brick plinth around the building and two sets of brick and concrete steps before the second and third applications were made. If that were the case, it may have been possible to have made an argument that it had ceased to be a mobile home and had become a permanent dwelling before the third application was made. Alternatively, if it was the construction of the extension that had made the dwelling permanent, it would have become so when that was completed to the point that it changed the nature of the dwelling from mobile to permanent.
It is reasonable to assume from the above that what had once been a mobile home had become a permanent dwelling some time before the third planning application had been submitted.
In areas where the LPA/CA has adopted a CIL charging schedule, the CIL Regulations apply when planning permission is granted for a building to which the CIL charging schedule applies. That includes dwellings. There are then some offsets and exemptions that may apply to reduce the CIL liability or avoid it altogether. Regulation 5 of the CIL Regulations provides a definition of what “planning permission” means for the purposes of the Regulations. That definition includes all the usual circumstances in which planning permissions are granted. In this case, the planning application would have been submitted under Section 73A of the Town and Country Planning Act 1990 (TCPA) which relates to development already carried out. Section 73A is included in the definition of planning permission in Regulation 5 of the CIL Regulations.
In this case, an alternative route may have been to allow the second temporary consent to expire without making any further planning application or to apply for a certificate of existing use or development under section 191 of the TCPA. Section 191 allows any person to make an application to the LPA if they wish to ascertain whether:
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful
Section 191 of the TCPA is not included in CIL Regulation 5 and the grant of an application for a certificate of lawfulness is, accordingly, not a planning permission to which the CIL Regulations apply. If the certificate of lawfulness route had been available in this case, the grant of the certificate would not have triggered a CIL liability.
All CIL appeal decisions are heavily redacted and it is, accordingly, not possible to discover any further background information relating to this case. There may well have been pressure on the applicant from the LPA to deal with the planning issues so that the focus was on those and not on whether the grant of the planning permission would trigger a CIL liability. It is, however, a good example of how the world of planning and the world of CIL are inextricably linked and why it is often necessary for all professionals advising in this area to start with considering the CIL position and develop the planning strategy to manage any potential CIL liability as well as the particular circumstances of each case will allow.
