In Oval Estates (St Peter’s) Ltd v Bath & North East Somerset Council [2020] EWHC 457 (Admin); [2020] PLSCS 36, the High Court handed down its first official judgment on the meaning of a “phased planning permission” for the purposes of the Community Infrastructure Levy (CIL) Regulations 2010.
The issue can have significant financial consequences since a phased planning permission will trigger CIL liability for phases independently, spreading the liability more evenly across the entire development. Where a planning permission is not phased, the CIL liability for the whole scheme is triggered on commencement of the development.
The argument did not arise from ambiguity in the Regulations, which helpfully define “phased planning permission” as “a planning permission which expressly provides for development to be carried out in phases”. Rather, the dispute arose due to confusion around timelines.
Oval had applied for outline planning permission in September 2014, which was granted in March 2016. The original outline permission made no reference to phasing, although there was reference to phasing in relation to the affordable housing scheme required by the section 106 agreement.
In April 2017, Oval obtained reserved matters approval (RMA) which included a proposed phasing plan. The development commenced in October 2018, and in February 2019 Oval obtained a section 96A decision for a non-material amendment which added a revised phasing plan (differing from the phasing plan in the RMA) to the outline consent.
Following the submission of an assumption of liability form in April 2017, Oval and the council engaged in a lengthy argument over whether the permission was phased or not, Oval asserting reliance on the contents of the section 106 agreement and the proposed phasing plan referred to in the reserved matters decision. Crucially, Oval went on to submit a commencement notice and commenced the development in October 2018, prior to the decision for non-material amendment to the outline planning permission being granted in February 2019.
In its judgment, the court emphasised that, Regulation 31 of the 2010 Regulations being the operative provision, the liability to pay CIL arises on commencement of the chargeable development. Having submitted the assumption of liability form and commenced works, Oval had accepted liability to pay CIL in respect of the chargeable development at that time. The subsequent non-material change to the planning permission did not alter this position, and the chargeable development was therefore the original planning permission, which was not a phased planning permission.
The decision is important in highlighting that the CIL liability is fixed at the date of commencement. Developers should be mindful that the permission which is commenced is the permission which will ultimately determine their CIL liability.
Claire Petricca-Riding is a partner and national head of planning and environmental law at Irwin Mitchell LLP
