Will unlawful development trigger CIL?
The Community Infrastructure Levy – many people dislike it and for good reason. It is complex, confusing, and most importantly, unforgiving.
The CIL Regulations are procedural and require various notices to be submitted to the Collecting Authority (“CA”), including the submission of a commencement notice “no later than the day before the day on which the chargeable development is to be commenced”. Failure to do so will result in a surcharge becoming payable.
A developer recently appealed a surcharge which had been imposed by the CA after the CA had deemed development to have commenced. The developer appealed, claiming the breach which led to the surcharge did not occur. Their reasoning was that as condition precedent conditions had not been discharged prior to the works commencing, the works carried out were not those permitted by the planning permission. Instead, they were in respect of a separate development. The separate development did not benefit from planning permission and so the works were unlawful. As such, no commencement notice was required.
The Inspector considered whether commencement of a chargeable development had in fact occurred. Case law states that a development is commenced following a ‘material operation’. Such an operation must be more than ‘de minimis’ when considered in the context of the development as a whole. The Inspector found that “whilst the work might fall within the scope of a material operation… the access is insignificant when considered in the context of the whole residential scheme”. The works did not pass the ‘de minimis’ test and the Inspector concluded that a chargeable development had not commenced. On that basis, the appeal was successful.
Sadly, the Inspector declined to opine on arguably the more interesting point as to whether implementation has to be lawful in order to trigger CIL.
The underpinning CIL legislation relies on development being “…commenced in reliance on planning permission”, with “chargeable development” defined as “…the development for which planning permission is granted”.
However, what happens if development is commenced unlawfully? It is a well established principle that development which has been carried out in breach of pre-commencement planning conditions is incapable of lawfully commencing development. The CIL Regulations are silent on this point. In the absence of explicit authorisation, it is certainly arguable that no charge could or should be levied by a charging authority. Obviously, once the position is regularised, then CIL will be payable.
Whilst this is not permission to commence development unlawfully (!), it is a reminder to seek legal advice when it comes to CIL as nothing is ever straightforward!
Subcribe to news and views
