Town and country planning – Community infrastructure levy (CIL) – Self-build exemption – Claimant applying for judicial review of decision of defendant local authority refusing CIL self-build exemption following grant of planning permission for development already carried out – Whether planning permission granted pursuant to section 73A of Town and Country Planning Act 1990 benefitting from exemption – Application dismissed
The claimant was a self-builder who obtained planning permission for partial demolition of, and extension to, his existing chalet bungalow at 59 Aldenham Avenue, Radlett, Hertfordshire. Community infrastructure levy (CIL) was not payable as the defendant local authority exempted residential extensions from the levy.
The defendant’s planning officers visited the site during the course of the demolition work and considered that the works undertaken had gone beyond the works authorised by the planning permission. They took the view that the development was unauthorised. In response, the claimant submitted a new planning application to regularise the demolition works undertaken and to permit the subsequent rebuild now required, as opposed to the former extension, of the house. Planning permission was subsequently granted, part-retrospectively, pursuant to section 73A of the Town and Country Planning Act 1990 for the demolition and the erection of a new detached six-bedroom dwelling.
The claimant argued that, on the plain wording of the provision, the self-build exemption provided for in regulation 54A of the Community Infrastructure Regulations 2010 applied to the grant of planning permission, pursuant to section 73A, for development already carried out, which was consistent with the purpose of the exemption. The defendant and the interested party secretary of state disagreed. The claimant applied for judicial review.
The interested party was joined by order of the chamber president to assist the court as the claim raised issues of interpretation of the 2010 Regulations which might have wider implications.
Held: The application was dismissed.
(1) Regulation 54A of the 2010 Regulations provided that a person was eligible for an exemption from liability to pay CIL in respect of a chargeable development, or part thereof, if it comprised self-build housing. To benefit from the exemption, a person had to submit a claim to the collecting authority in accordance with regulation 54B.
However, when the strict criteria in regulation 54B(2) were tested against the grant of planning permission, pursuant to section 73A of the 1990 Act, for development already carried out, they barred the availability of the exemption for such permission.
By regulation 54B(2)(a), the claim for an exemption had to be made by a person who “intends to build, or commission the building of, a new dwelling”. The references to “intends” and “commission” were forward looking. They were not consistent with an application by a person who had already built or begun to build a dwelling.
The claim also had to be made by someone who “has assumed liability to pay CIL in respect of the new dwelling”: regulation 54B(2)(a)(ii)). The assumption of liability was a prerequisite to obtaining the exemption. Yet that was not possible for retrospective planning permission granted under section 73A of the 1990 Act, by virtue of regulation 7(5) and 31 of the 2010 Regulations.
(2) Where planning permission was granted under section 73A, regulation 7(5) provided that the development was to be treated as commencing on the day planning permission for that development was granted. That was an exception to the general rule that development was treated as commencing on the earliest date on which any material operation began to be carried out: regulation 7(2) and (6). There was no gap between the grant of planning permission and the commencement of development during which time liability might be validly assumed for the chargeable development as a prerequisite to the claim for an exemption.
Whilst there was nothing to stop someone starting the process of assuming liability beforehand, the assumption of liability could not crystallise until the grant of planning permission. An exemption or relief could not be granted in a vacuum. In order to comply with regulation 54B(4), the collecting authority needed to understand what it was granting relief, or an exemption, from. A collecting authority did not grant an exemption unless it knew what the CIL liability was and a collecting authority could not know the CIL liability until planning permission had been granted. Once the collecting authority knew that a chargeable development existed, it could calculate the liability and then any exemption if available.
Support for the significance of the grant of planning permission as a trigger for CIL liability came from the operation of the regulation 116B appeal mechanism, in respect of the grant of an exemption for self-build housing. An appeal had to be made before the end of the period of 28 days beginning with the date of the decision of the collecting authority on the claim for an exemption for self-build housing.
(4) Where an application for planning permission was granted pursuant to section 73A, any claim for self-build housing which might have been made would lapse on the day that planning permission was granted because of the operation of regulation 7(5) concerning the deemed commencement date. Whereas the general rule was that a chargeable development was treated as commencing on the earliest date on which any material operation began to be carried out on the relevant land, development for which planning permission was granted under section 73A was to be treated as commencing on the day planning permission for that development was granted: regulation 73(5)(b). It was impossible for a self-builder seeking retrospective planning permission to escape that stricture.
(5) The claimant undertook development for which he had no planning permission, and which was therefore unauthorised, and did not notify the defendant of the unauthorised works. Further, regulation 54B(6) applied to all chargeable development where a self-build exemption had been properly obtained but where there was a subsequent failure to submit a commencement notice.
It was apparent from a close review of the CIL Regulations and in particular regulations 54A and 54B that the exemption for self-build could not be claimed in relation to development authorised under section 73A. Amendments made in the CIL Amendment Regulations 2019 to the availability and operation of the self-build exemption could have taken the opportunity to permit planning permissions granted pursuant to section 73A to benefit from the exemption but it had not.
Saira Kabir Sheikh QC (instructed by James Smith (Planning Law Services) Ltd) appeared for the claimant; Emmaline Lambert (instructed by Hertsmere Borough Council) appeared for the defendant; Ben Du Feu (instructed by the Government Legal Department) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Gardiner) v Hertsmere Borough Council
