Planning authorities have the power, when granting planning permission, to impose "such conditions as they think fit". This includes pre-commencement conditions, which must be complied with before any building or operation comprised in the development is begun, or any change of use is begun.
Community Infrastructure Levy (CIL) is a discretionary planning charge which can be levied on most new developments, if there is a charging schedule in effect in the local authority area where the development is to take place. CIL becomes payable on the first commencement of development of the relevant planning permission, i.e. the earliest date on which any material operation begins to be carried out on the land.
CIL is payable by the person/s who assume liability by sending a notice to the local authority or, if no notice is sent prior to the commencement of development, CIL is apportioned between those persons having a 'material interest' in the land. If no such notice is sent prior to commencement of development, a surcharge equal to 20% of the chargeable amount payable or £2,500 (whichever is lower) may be levied.
CIL appeal decision
In appeal APP/F0114/L/18/1200229 (2 May 2019) the appellant had planning permission to carry out a development. A pre-commencement planning condition required the appellant to conduct a contamination survey of the land. In order to carry out this survey, the appellant had to carry out demolition works.
The planning permission included 'demolition' as part of the development. This meant that, because the appellant had undertaken demolition works, the development had commenced and the liability to CIL was thus triggered. Not appreciating this, the appellant did not send the required notice and a surcharge was levied. The appellant appealed against this decision, but the appeal was dismissed and the appellant was liable to pay the surcharge.
Discussion
This decision highlights the importance of being conscious of exactly when CIL liability will be triggered.
If the deadline for sending the assumption of liability notice is missed, this could have implications not just for the parties who are responsible for the development, but also for parties who are unexpectedly caught within the default liability rules because they have a 'material interest' in the land.
A possible way around commencing the planning permission in these circumstances is to use permitted development rights for the demolition, but it is important to:
- go through the relevant prior approval notification procedures first; and
- get confirmation from the planning authority that the demolition is pursuant to permitted development rights, as opposed to under the planning permission.