2023 Planning round-up – Community Infrastructure Levy – the ghost of Christmas past?

Last Christmas?

To kick things off, we’re going to take a look back at some developments in the thorny world of the community infrastructure levy (“CIL”). Some may think they can consign the intricacies of CIL to the past, given that the Levelling-up and Regeneration Act 2023 contains provisions for replacing it (in most cases) with a new infrastructure levy (IL). However, as previously reported, not only is LURA very much a framework, meaning that it will be some time before IL sees the light of day, but the government proposes a phased roll out of the new IL regime, potentially stretching out over a decade. All of this means that CIL is likely to be with at least some of us for many years to come.

So what are the implications of some of the key VOA decisions we saw in 2023?

• Variations to a planning permission can be fatal to claims for relief where they are retrospective: The CIL Regulations are very clear – in most cases relief is only available where the charging authority makes a decision on that relief before the development commences. In a VOA decision this year it was decided that an application purporting to be a s73 application was actually a s73A application, seeking retrospective planning permission for certain parts already built. Accordingly the reliefs claimed in respect of the original permission were no longer available.

This is a useful reminder to developers – it doesn’t matter what you purport to be applying for, if any part of permission granted is retrospective, all existing reliefs could be lost. 

• Viability of a development isn’t relevant to whether CIL is payable:  The nature of CIL means that, once there is a charging schedule in place, the only options to avoid liability are the application of reliefs and the exclusion of floorspace. In a decision this year, the developer argued that an agricultural tie imposed on the planning permission reduced the value of the relevant dwelling significantly, and therefore liability to pay CIL would likewise greatly impact viability. The VOA reconfirmed that this was not relevant, and the CIL Regulations provide no scope to consider viability when determining liability.

It is important to remember that there is no discretion around the amount of CIL liability. If the payment of CIL could render a development unviable, this should be factored in when agreeing the package of benefits to be delivered, such as affordable housing. Addressing this at the CIL stage is too late.

• Use of “in use” buildings need not involve activity: Where a building has been in use for six months within a relevant three year period, that floorspace can usually be deducted from the total amount of floorspace included in CIL calculations. This often leads to debate about what “in use” really means. In one case this year, it was decided that using the safes and strong rooms in a bank was adequate for the building to be “in-use” as a bank, and the floorspace could be offset when calculating CIL.

It's clear that even if the day-to-day character of a use changes significantly, provided the operations being carried out at a building are lawful in planning terms, a building may still qualify as being “in-use” for these purposes.

• But there does need to be some kind of use continually: Although there does not necessarily need to be active use of a building, there does need to be some kind of continual use – it is not adequate that the building could be put to a specific use. In another case this year, a building was held not to be “in-use” for the requisite six months as during that period the property had been closed for part of the time due to Covid restrictions.

This highlights the importance of having clear evidence as to when a property was actually being put to a specific use, including evidence that use continued during the whole period being relied on.  

It’s worth remembering that, although VOA decisions aren’t binding in the same way that court decisions are, they do provide a useful illustration of how similar matters are likely to be dealt with in the future, and are often relied upon by charging authorities.

In our next festive round-up we’ll consider heritage planning, including some of the most interesting decisions in the last year, as well as some of the legal changes due in that sphere.

Authored by Hannah Quarterman.