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Ten CIL lessons 2020

We are now – thankfully – firmly out of 2020 and in the hands of 2021. Although reviewing the past year may not initially seem an appealing prospect, it is nonetheless a worthwhile one. 2020 delivered some important takeaways for advisers and developers for the coming year – particularly so in the realm of the Community Infrastructure Levy (“CIL”). We have, therefore, compiled our top ten CIL lessons from the many appeal decisions and judgments published in 2020.

  1. Personal circumstances cannot be considered in a CIL appeal. In this case, the appellant said she had not assumed liability or submitted a commencement notice before starting works on the chargeable development because she was going through a stressful period. Despite this, the inspector held that an appeal can only be determined on the facts and cannot take into account personal circumstances (PINS appeal decision: APP/C3620/L/20/1200391).
  2. The collecting authority should send CIL notices to the applicant and the applicant’s agent. This will ensure that, in instances where the applicant doesn’t receive the notice (as was the case in this appeal), the notice can still be validly served if received by the applicant’s agent. (PINS appeal decision: APP/V3310/L/19/1200344).
  3. A liability notice is correctly served if it is served on the relevant person. In this appeal, it didn’t matter that the receivers were unaware of the liability notice; the liability notice was correctly served on the person who applied for the planning permission. As such, it, and the relevant surcharges, were to be paid. (PINS appeal decision: APP/H5390/L/20/1200416).
  4. Correct procedure must be followed to rely on exemptions. Here, failure to assume liability or submit a commencement notice led to the self-build exemption being lost for one development. The inspector pointed out that the exemption form makes clear that this will happen. (PINS appeal decision: APP/W4705/L/20/1200399).
  5. There is no power to correct CIL notices on appeal. The inspector made clear in this instance that, as there is no power on appeal to correct or vary a demand notice within the CIL Regulations themselves, errors in demand notices should be corrected by serving a revised demand notice. The earlier notice will then cease to have effect (PINS appeal decision: APP/L/19/1200356).
  6. Surcharges are inevitable when it comes to retrospective planning permission. When a planning application is retrospective it is impossible for a commencement notice to be submitted in advance of the chargeable development starting. This makes a surcharge inevitable. (PINS appeal decision: APP/L5240/L/20/1200389).
  7.  It is the collecting authority’s responsibility to ensure that a liability notice is correctly served. Specifically on this appeal, it was found not to be enough for an email to be generated. Instead, there needs to be proof that the email was actually sent or delivered. The inspector made the point that, even if the developer in question knew they would have to submit a commencement notice, if they did not receive a liability notice they could not correctly submit the notice. (PINS appeal decision: APP/C1435/L/19/1200305).
  8.  A commencement notice must follow the prescribed form. Failure to submit in a form published by the Secretary of State (or something to substantially the same effect) will result in the notice being invalid. Here an email informing the council of the intention to start works did not satisfy the requirement that a commencement notice should be in a prescribed form. It was therefore deemed ineffective. (PINS appeal decision: APP/C1245/L/20/1200386).
  9. Developers must ensure that the commencement notice has been received no later than the day before chargeable development is to be started. In this instance the appellant claimed the notice was sent two weeks before beginning works, however, the authority did not receive the notice and the appellant was unable to provide proof of postage. The inspector could not be certain that the commencement notice was submitted before the works began and as such a surcharge was payable. The inspector suggested that developers should seek acknowledgement of receipt to avoid this risk. (PINS appeal decision: APP/A1910/L/20/1200405).
  10. Developers should set CIL phasing strategies early in the planning process. The Oval Estates decision handed down in February made clear that developers can’t rely on retrospective action when it comes to calculating CIL liability. Indeed, if CIL payments are to be phased, the permission must make this clear and developers should not, as was the case in Oval Estates, seek to incorporate phases after commencing the development. (R (Oval Estates (St Peter’s) Ltd) v Bath & North East Somerset Council [2020] EWHC 457 (Admin). You can read in detail about this case in our previous blog post here.)

Evidently CIL continues to be a topic just as complex and changeable as your relationship with your January 2021 fitness regime. Undoubtedly, 2021 – and this blog – will bring with it further changes and developments which any development project will have to examine carefully to avoid falling foul of the countless potential pitfalls.