On 16 August 2022, the Court of Appeal ruled in Gardiner v Hertsmere Borough Council and Secretary of State for Levelling Up, Housing and Communities [2022] EWCA Civ 1162 that the exemption from liability to Community Infrastructure Levy for self-builders in the Community Infrastructure Levy Regulations 2010 (the “CIL Regulations”) was not available where the development had been authorised by retrospective planning permission[1].
Background
The case concerned Gardiner who had been granted planning permission for partial demolition of a bungalow and the construction of an extension. The works carried out by Gardiner were not in accordance with the planning permission.
Gardiner therefore obtained retrospective planning permission and correspondence with the local planning authority arose as to whether the self-build housing exemption was available.
Hertsmere Borough Council found that the self-build housing exemption was not applicable to a retrospective planning permission and served a liability notice for CIL on Gardiner for £128,227.
Decision
The issue was whether the High Court had been right to hold that the self-building housing exemption was not available to Gardiner. The Court of Appeal upheld the High Court decision and dismissed the appeal.
The Court of Appeal judgment confirms that the CIL Regulations require that, in order to claim the exemption for self-built housing, a person has to assume liability to CIL after planning permission had been granted but before development commenced. Where development had been undertaken which required retrospective planning permission, there would be no period in which the person who sought to claim the exemption could effectively assume liability to CIL.
The commencement of development of a retrospective planning permission “is to be treated as commencing on the day planning permission for [it] is granted” and liability to CIL arises “on commencement of the chargeable development”. Therefore, for retrospective planning permissions there is no interval between the time when planning permission is granted and the time when development under that permission is treated as having commenced in order to assume liability.
Practical Implications
The nature of a retrospective planning permission means that there cannot be a valid claim for the self-build exemption to reduce or avoid a CIL charge relating to it.
Self-builders should carefully consider whether they are able to comply with the initial planning permission.
CIL consequences must be considered as the cost of failing to comply with the initial planning permission can be high.
Where plans change, thought as to whether it would be possible to take action to comply with the initial permission should also be considered as this may remove the need for any further planning application.
The judgment also has implications for development which would otherwise benefit from charitable relief or social housing relief where retrospective planning permission has been granted.
At CMS, our Planning Team advise on a wide range of CIL matters. If you need help with CIL, ask us what to do.
[1] S73A of the Town and Country Planning Act 1990.
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