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HCR Law Events

13 December 2021

The ever-evolving Community Infrastructure Levy

The ever-evolving Community Infrastructure Levy (CIL) regime can be tricky to navigate even for experienced developers. The regime, by its very nature, imposes an additional charge on development, but also carries with it a statutory process which, if not followed to the letter, can incur further costs and penalties. Here we discuss some points for developers to keep in mind.

 

The importance of notices

The CIL regulations require that a series of notices are served by developers on the collecting authority and vice versa throughout the planning and development process at defined times.

Most notably, the regulations require that a valid commencement notice is served no later than one day before the day on which the chargeable development is to be commenced. The commencement notice must be on the correct form and state the date upon which development is to commence. A backdated notice, an email to the council or a start date of ‘as soon as possible’ are not sufficient.

It is even more important that a valid commencement notice is served on time in respect of liability notices served before 1 September 2019. Failure to do so will prevent valuable exemptions being applied. In respect of liability notices served after 1 September 2019, a surcharge or penalty will be payable, but exemptions will remain available.

 

In use’ buildings?

Aside from the reliefs and exemptions which are available to reduce the CIL payable, ‘in use’ buildings can also lead to a reduction in the chargeable area and so can significantly reduce CIL liability.

To benefit, there must be an existing building located within the development site that has been in lawful use for a continuous period of more than six months in the last three years. It will not matter whether this building is to be demolished or retained. The collecting authority may require evidence to be submitted to demonstrate that these criteria are met.

Collecting authorities are not prescriptive about the nature of evidence that they will accept but this will often include historic photographs, inspection reports, plans, ratings information, correspondence to the address of the building or statutory declarations prepared by the owner or occupiers of the building.

 

Issue of the liability notice

Be mindful of long delays before liability notices are issued as this can invalidate a liability notice entirely. The case of R(Trent) v Hertsmere Borough Council (2021) established that a delay of two and a half years fell foul of the requirement to issue the liability notice as soon as possible after the day on which a planning permission first permits development.

Furthermore, it is apparent from the regulations that the demand notice must follow service of a liability notice. If the issue of the liability notice is invalid due to delay, the demand notice must also be unlawful.

 

Checking the liability notice

There is only a limited window within which to ask the collecting authority to revisit the chargeable amount. This can be done by requesting a review in writing within 28 days of the issue of the liability notice.

The request for a review should be accompanied by a written explanation of the reason for requesting the review and why a different chargeable amount should be payable.

The collecting authority must respond within 14 days. The review decision can be appealed to the Valuation Office Agency.

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About the Author
Laura Greenman, Partner, Planning, Highways & Environment

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