CIL Notices – Some Pitfalls to Avoid
The community infrastructure levy ("CIL"), which was first introduced by the Planning Act 2008, is now being implemented by many local planning authorities both regionally and nationally.
2019 saw yet another round of cases emerge before the Planning Inspectorate relating to CIL and yet again a considerable number of these cases related to procedural errors as opposed to substantive legal issues.
The CIL regime is extremely strict and inflexible and so it is important that the correct procedure is followed to the letter otherwise the local planning authority has extensive enforcement powers, including imposing surcharges, charging interest, issuing a CIL stop notice, asset seizure and powers of imprisonment.
We have set out three cases below to demonstrate how easy it is to make a mistake when dealing with commencement notices under CIL and the consequences of making a mistake. Rollits has come across a number of cases where both the Council and a Client has misunderstood the regime which has lead to substantial costs for landowners and developers and so it is crucial that advice is taken from the outset to ensure that no mistakes are made.
The first case which highlights how easy a mistake can be made is the case of PINS: PP/E1210/L/19/1200303 - 117a, dismissed (19 December 2019). In this case the appellant submitted a commencement notice and assumption of liability notice to the relevant authority and subsequently commenced development. It then came to the attention of the relevant authority that the development had commenced but no notices had been received prior to commencement and so the authority imposed surcharges to which the applicant appealed.
In this case, there was a fault with the authority's email address and the appellant received a delivery failure message but not until some time after development commenced. Despite this, the appeal was dismissed and the inspector held that the appellant should have checked that the notices were received before the commencement of development.
This case therefore demonstrates that, not only should the notices be sent, but acknowledgement of receipt should also be obtained otherwise there is a risk of surcharges being imposed in the event that the notices are not received. We would always advise that written acknowledgement is obtained from the relevant authority prior to commencement as evidence in the event of a dispute.
The second case which shows that consideration must be given to the regime is the case of PINS: Appeal decision: APP/X4725/L/19/1200321 (11 December 2019). In this case the appellant carried out demolition works before planning permission was granted and a commencement notice lodged. However, the planning permission included the demolition works. The authority imposed surcharges, on the basis that development commenced before the commencement notice was submitted, and the surcharges were appealed.
The appellant argued that as the demolition works took place before planning permission was granted that the development had not commenced and so a commencement notice was not needed at that time. The authority argued that a material operation had commenced and accordingly a commencement notice should have been submitted.
The inspector held that the demolition works formed part of the planning permission and so the permission automatically became liable to CIL and CIL surcharges as the permission was retrospective. The appeal was dismissed.
This case shows the pitfalls of applying for retrospective planning permission and the potential cost implications. This case demonstrates that, where CIL is chargeable, it may no longer be appropriate to commence any development or carry out any works until such time as planning permission has been granted and a commencement notice served.
The final case again demonstrates the need to evidence postage of the commencement notice to avoid the risk of a surcharge being imposed. In the case of PINS: Appeal decision: APP/Q1255/L/19/1200286 (7 November 2019), the applicant served a commencement notice by first class post which was evidenced by the posting book and a copy of the notice. The notice was not received and surcharges were imposed. The inspector held that, whilst first class post was a valid method of service, the evidence supplied did not in fact prove postage and without proof of postage the surcharge would be upheld.
In light of this case, it would be prudent to serve all notices by first class post at the Post Office so proof of posting can be evidenced, and by recorded delivery, so proof of postage and receipt can be evidenced.
As with serving any type of formal notice, we would always advise that appropriate advice is obtained when serving a commencement notice or an assumption of liability notice to ensure that the notice has been properly and validly served and evidence of service is obtained to avoid any surcharges being imposed which could be costly.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.