Town and country planning – Community infrastructure levy (CIL) – Self-build exemption – Appellant applying for judicial review of refusal by respondent local authority of CIL self-build exemption following grant of planning permission for development already carried out – High Court dismissing application – Appellant appealing – Whether planning permission granted pursuant to section 73A of Town and Country Planning Act 1990 benefitting from exemption – Appeal dismissed
The appellant 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. CIL was not payable as the respondent local authority exempted residential extensions from the levy.
The respondent’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 appellant 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. 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 appellant 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 respondent and the interested party secretary of state disagreed. The claimant applied for judicial review.
The interested party was joined to assist the court on the interpretation of the 2010 Regulations. The High Court dismissed the application: [2021] EWHC 1875 (Admin); [2021] PLSCS 123. The appellant appealed.
Held: The appeal was dismissed.
(1) There was a significant difference between prospective and retrospective planning permissions. Prospective planning permission was first applied for and granted, and the approved development was begun at a later point in time. But in the case of retrospective planning permission, granted under section 73A of the 1990 Act, development had already been begun in breach of planning control before permission was granted.
Under the statutory scheme for CIL, in contrast to the general position in regulation 7(2) and (6) of the CIL Regulations, such development “is to be treated as commencing on the day planning permission for [it] is granted”: regulation 7(5). Liability for CIL arose “on commencement of the chargeable development”: regulation 31(3). Thus, for retrospective grants of planning permission there was no interval between the time when planning permission was granted and when development under that permission was treated as having commenced. The two events were simultaneous and inseparable. In principle, therefore, by the operation of the relevant statutory provisions, the self-building housing exemption was not available where the “chargeable development” was first authorised by a retrospective planning permission granted under section 73A.
Whilst the statutory regime for the charging of CIL made possible a claim for the exemption for self-build housing in the normal case, after planning permission had been granted and before the development was commenced, that was precluded where retrospective planning permission was granted under section 73A.
(2) The procedure for the charging of CIL and for exemptions from the payment of CIL depended on there being a “chargeable development”, without which no charge to CIL could be levied. Until the proposal for development obtained the requisite grant of planning permission, there would not be a proper basis for charging CIL.
Regulation 9(1) of the CIL Regulations defined “chargeable development” as “the development for which planning permission is granted”. Read properly in context, that definition confirmed that a chargeable development was one for which planning permission had already been granted and which was thus capable of giving rise to a calculable charge of CIL. It did not include development for which planning permission was yet to be granted, and which was for the moment simply a proposal in an application for planning permission which might never be granted. The concept of a planning permission that “is granted”, in this context, was that there existed a grant of planning permission as a matter of fact, not merely a possible grant in the future.
(3) An essential part of the regime for the self-build housing exemption in the CIL Regulations was the strict procedure in regulation 54B, adherence to which was obligatory. If it was not followed, the exemption would not be available. The claim had to comply with the requirements of regulation 54B(2) and be made by a person who “has assumed liability to pay CIL …”: regulation 54B(2)(a)(ii). The exemption was only available to a person who had already assumed such liability.
The gap between grant of planning permission and commencement of development in prospective grants of planning permission did not exist for planning permission granted under section 73A. Where such permission was granted, regulations 7(5) and 31 had the effect in combination of removing the gap entirely and preventing an effective assumption of liability for a chargeable development. In those circumstances, there could not be a valid claim for the self-build housing exemption in accordance with the statutory scheme.
(4) Properly construed, under regulation 31 an effective assumption of liability to CIL was not possible for a development without the necessary planning permission. The submission of an assumption of liability notice, even if the notice was valid on its face and in due form as a matter of procedure, was not the same as an assumption of liability which was in accordance with the relevant provisions and effective as a matter of substance.
The notice might be sent and received before the determination of the relevant application for planning permission, and, as an administrative step, its receipt might be acknowledged by the authority, as in this case. But under regulation 31(1) liability could only be assumed for a chargeable development which, under regulation 9(1), was a development with the benefit of planning permission. And an effective assumption of liability had to precede the making of a claim for the self-build housing exemption under regulation 54B(2)(a)(ii).
Accordingly, the respondent’s decisions under challenge were lawful and the judge was right to uphold them.
Saira Kabir Sheikh QC (instructed by James Smith (Planning Law Services) Ltd) appeared for the appellant; Emmaline Lambert (instructed by Hertsmere Borough Council) appeared for the respondent; Richard Honey QC and 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
