Is a roadway, used for loading enclosed on two sides and covered by the upper part of a factory building, part of the gross internal area of the factory building when calculating CIL liability?

Pursuant to a chargeable development, alterations were carried out by way of development to a factory building. Part of the building operations included the full enclosure of a former roadway that had only been enclosed on two sides and covered by the upper part of a factory building but open at the front and rear. The roadway was used for loading and unloading, and was enclosed as part of the development mainly to protect factory equipment. Should the area be included when calculating CIL liability?

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 15^th December 2013 relating to the aforementioned development, it was determined that the roadway was being used, and had been used, for the loading and unloading of equipment and therefore could reasonably be described as a combined roadway and loading area (albeit one which was open on two side). It was further determined that it should be a qualifying relevant building included as part of the existing GIA ,and should therefore be included under Reg 40 as a set-off against the GIA for the development. The roadway was fully enclosed as part of the development and its inclusion within the calculations of the GIA for the altered building was not in dispute.

GIA is not defined in the CIL Regulations 2010. However, it was found that the generally accepted method of calculation of GIA is set out in the RICS Code of Measuring Practice (6^th Edition). It provides that GIA is the area of a building measured to the internal face of the perimeter walls at each floor and includes:

• Areas occupied by internal walls and partitions;
• Columns, piers, chimney breast, stairwells, lift-wells, other internal projections, vertical ducts , and the like;
• Atria and entrance halls, with clear height above, measured at base level only;
• Internal open-sided balconies walkways and the like;
• Structural, raked or stepped floors are to be treated as level floor measured horizontally;
• Horizontal floors, with permanent access, below structural, raked or stepped floors;
• Corridors of a permanent essential nature (eg fire corridors, some lobbies);
• Mezzanine floors areas with permanent access;
• Lift rooms, plant rooms, fuel stores, tank rooms which are housed in a covered structure of a permanent nature, whether or not above the main roof level;
• Service accommodation such as toilets, toilet lobbies, bathrooms, showers, changing rooms, clears’ rooms and the like;
• Projection rooms;
• Voids over stairwells and lift shafts on upper floors;
• Loading bays;
• Areas with a headroom of less than 1.5m;
• Pavement vaults;
• Garages; and
• Conservatories.

Excluded are:

• Perimeter wall thicknesses and external projections;
• External open-sided balconies, covered ways and fire escapes;
• Canopies;
• Voids over or under structural, raked or stepped floors; and
• Greenhouses, garden stores, fuel stored, and the like in residential property.

It was determined that the roadway (with its combined use for loading) fell within the highlighted inclusion above, and therefore included by the RICS Code of Measuring Practice as being within the existing GIA of the building.

Lessons:  The calculation of GIA when determining the amount of the CIL liability should be in accordance with the RICS Code of Measuring Practice (6^th Edition) (or any subsequent edition). This will be the case unless alternative guidance is published by the Government or the CIL Regs are amended to include a definition of GIA. Each case will depend upon its own facts. However, partially enclosed roads with a material purpose for the provision of loading will likely need to be included in the calculation of the GIA (for both the new building and any existing use set-off).