CIL levy exemption should not be applied to retrospective applications, Court of Appeal rules

The exemption from the community infrastructure levy (CIL) for self-build projects cannot apply where a home has been built and needs retrospective consent, the Court of Appeal has said.

Sir Keith Lindblom, the senior president of tribunals, sitting with Lord Justice Edis and Lord Justice William Davis, decided Hertsmere Borough Council had acted correctly when it refused the exemption to local resident Nathan Gardiner.

The case concerned statutory interpretation of the exemption under regulations 54A and 54B of the Community Infrastructure Levy Regulations 2010.

Sir Keith said: “The particular question is whether that exemption is available when planning permission is granted retrospectively for such development, under section 73A of the Town and Country Planning Act 1990.”

Mr Gardiner had appealed against the order of Mrs Justice Thornton dismissing his claim for judicial review of Hertsmere’s decision to refuse him the exemption.

He had partially demolished his chalet bungalow in Radlett, and had applied successfully for planning consent for works he intend to undertake himself.

But the work involved went beyond the scope of that planning permission and he applied successfully for retrospective consent, but Hertsmere then decided the exemption did not apply and issued a CIL demand for £118,227.62.

Following lengthy correspondence, the council told Mr Gardiner “relief could have been applied for and may have been granted in respect of a permission prior to these works being completed but relief is inapplicable to any retrospective planning permissions”, and that “[an] application for self-build relief on the new permission cannot be made, as the development will be lawfully commenced on the day (and if) planning permission is granted”.

Sir Keith said Thornton J had been right to dismiss the claim for judicial review.

He said: “The statutory scheme for CIL is self-contained and carefully constructed. On a true understanding of the relevant provisions, which are themselves intricately composed, the correct conclusion here is that the self-build housing exemption was not available to Mr Gardiner.”

Sir Keith explained that in the case of prospective planning permission, permission is first applied for and granted, and the development is begun later.
In retrospective planning permission, development has already been begun in breach of planning control before permission is granted.

“An insuperable difficulty for the argument advanced [for Mr Gardiner] is that the CIL Regulations make it impossible to claim the self-build housing exemption from CIL if there is no gap in time between the grant of planning permission and the commencement of the development,” Sir Keith said.

“Where planning permission is granted prospectively, such a gap will always exist. In the case of the self-build housing exemption, it will enable an assumption of liability to CIL under regulation 31 and the determination by the collecting authority of the claim for the exemption under regulations 54A and 54B.

“However…a person cannot validly assume liability [to CIL] before planning permission is granted, but also cannot after development has commenced.”

Retrospective planning permission eliminated any gap between the grant of permission and the start of development so as to “make it impossible validly to assume liability for a chargeable development”, Sir Keith said.