Retrospective planning permission was granted for the retention of two former storerooms within a building which had been converted into two single flats. The relevant local authority had served an enforcement notice. The owner had argued that the converted flats were occupied for over four years. The local authority had argued deliberate concealment. The enforcement notice (and an appeal) was withdrawn following the grant of retrospective planning permission by the local authority. Was the development liable for CIL?
Liable for CIL: Regulation 40 of the CIL Regulations 2010 sets out the calculations of CIL liability for a chargeable development. The chargeable amount is calculated in reference to the gross internal area (GIA) of the chargeable development less any part of a relevant building that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development. A relevant building is defined as a building which is situated on the relevant land on the day planning permission first permits the chargeable development.
In an appeal decision of the Valuation Office Agency published 16 May 2016 relating to the aforementioned development, it was found that if the time limits as to enforcement of breach of planning control under section 171(B) of the Town and Country Planning Act 1990 apply then such use would be existing lawful use under Reg 40 and entitled to be set off against the gross internal area of the converted flats.
It was agreed between the parties that use of the converted flats had been for four years but in dispute was whether matters stated at a site visit within the four year period had amounted to deliberate concealment. On the facts it was found that there was not deliberate concealment arising from the site meeting and that the time limits of s171(B) applied. As such the past use was lawful and, as the retrospective planning permission hadn’t increased the gross internal area, the development was nil liability for CIL.
Lessons: Each case will depend upon its own facts. However, retrospective planning permission will not deny the benefits of s173(B). Thus, if an existing use is lawful by way of the time limits for planning enforcement, and such use has been continuous for a period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development, then the GIA of such lawful use may be deducted from the GIA of the chargeable development when calculating the CIL liability under Reg 40.
