Hard on the heels of our previous article, comes another salutary appeal decision from the procedurally rigorous world of CIL, and this one is likely to cause even the most hard-hearted to wince.
This case involved the grant of planning consent for a replacement dwelling. The correct procedure had been followed at the time of the grant of the planning consent and prior to the commencement of the works so that the new dwelling benefitted from self-build relief from CIL. The dwelling was not constructed strictly in accordance with the approved plans. The differences were sufficient for the local planning authority (LPA) (also the CIL charging authority) to inform the developers that it considered the dwelling as constructed to be unlawful and advised them to regularise the position by submitting an application under Section 73A of the Town and Country Planning Act 1990 which applies to “development already carried out”. They dealt with it by amending a condition of the original planning consent to replace the previously approved plans with new plans that showed what had actually been built. The changes are listed in the appeal decision as:
a) The incomplete, west boundary wall was not built as per approved design.
b) A brick retaining wall had been built to the front and side.
c) The pedestrian path to the front door was wider than approved.
d) Brick piers had been built either side of the pedestrian access.
e) The approved plans showed the exterior walls of the garage and dwelling to be brick to DPC level and rendered blockwork above. This had been changed to all brick elevations.
f) The approved windows and rooflights had been changed in size and number.
The developers had argued that these changes could have been dealt with as a non-material amendment under Section 96A of the Town and Country Planning Act 1990 which gives an LPA the power to make “non-material changes to planning permission” but the LPA said that it considered that there changes were not “non-material”.
After the Section 73A consent was granted, the LPA issued a CIL liability notice for the new dwelling. It said that, although the previously consented property was exempt because the self-build relief applied, reliefs from CIL are not available for any retrospective development, and because it had decided that the dwelling as built was unlawful and needed to be made lawful by the grant of the section 73A consent, it was now retrospective development and could not benefit from the previous CIL relief.
The developers argued that they were private people building a house for themselves and had been acting on the advice of the LPA and others and that, under the circumstances, relief from CIL should still apply. The LPA referred the Appointed Person to case law to support its position that no relief from CIL is available for retrospective development and dismissed the appeal.
Given the fact that all CIL appeal decisions are heavily redacted, it is not possible to discover what the CIL liability may now be but, depending on the CIL charging schedule adopted by the LPA, it could easily be in the region of £30,000 for a relatively modest house.
