The Community Infrastructure Levy (CIL) on developments is an extremely strict regime in its prescribed obligations and timescales. If you are late or fail to serve on the council mandatory notices, then you could lose the right to claim an exemption and trigger a surcharge on the CIL amount payable. The Planning Inspectorate has recently released several appeal decisions which illustrate the simple errors that can occur in submitting CIL notices and the consequence in getting it wrong.
CIL Notices, Exemptions and Surcharges
The Community Infrastructure Levy Regulations 2010 (“the CIL Regs”) sets out various notices which must be submitted to the council and the deadlines to be met. It also enables the council to levy a surcharge should such notices not be submitted or submitted late. Examples of the key notices and associated surcharges include:
(a) assumption of liability notices (Reg 31) – commencing a chargeable development before the notice is submitted triggers a surcharge of £50 on each person liable to pay CIL (Reg 80) and if default liability will be apportioned then £500 on each apportionment (Reg 81);
(b) notices of chargeable development (for permitted development rights) (Reg 64) – commencing a chargeable development before the notice is submitted triggers a surcharge equal to 20 per cent of the chargeable amount payable or £2,500, whichever is the lower amount (Reg 82); and
(c) commencement notices (for express planning permissions) (Reg 67) – commencing a chargeable development before the notice is submitted triggers a surcharge equal to 20 per cent of the chargeable amount payable or £2,500, whichever is the lower amount (Reg 83).
The reliefs and exemptions to CIL under Part 6 of the CIL Regs prescribe similarly strict timescales. For example:
(a) Exemption for residential annexes or extensions (Reg 42A) – claim must be received prior to commencement (and commencement must not occur until a decision is made by the council) (Reg 42B); and
(b) Exemption for self-build housing (Reg 54A) – claim must be received prior to commencement (and commencement must not occur until a decision is made by the council) (Reg 54B).
How do you submit the notice?
Reg 126 provides the statutory methods for which the notice may be submitted on the council and they include:
(a) by delivering it in person to the council’s offices;
(b) by sending it by post to the council’s offices (including by prepaid registered letter or by the recorded delivery service); and
(e) by email to the council’s published email address for planning in an appropriate and legible form.
The Lessons of the Appeal Decisions
The published appeal decisions of the Planning Inspectorate related to failed attempts to submit notices by email to the council.
In the first case, Appeal Ref. APP/U5360/L/17/1200150, the developer submitted an assumption of liability notice and a commencement notice by email to the council. The developer then commenced development. Unfortunately, the email was sent to the wrong email address and the council never received the notices. The council imposed the surcharges for both late notices and, while sympathetic of the developer’s position, the Planning Inspectorate upheld the surcharges due to the strict breach of the CIL Regs.
In the second case, Appeal Ref. APP/L3245/L/17/1200160, the developer alleged that he submitted a commencement notice by email to the council. The developer then commenced development. However, the council denied ever receiving the notice and the surcharge was imposed. The developer had record of the commencement notice but not the alleged email (which mistakenly may not have been sent). In finding the surcharge was triggered for failure to submit the notice before commencement, the Planning Inspector noted:
“Ultimately, the onus was on the appellant to ensure a CN was received by the Council at least one day before works began on the chargeable development … Given the importance of the notice and the fact that the appellant could potentially be facing a surcharge, it is not unreasonable to expect him to have contacted the Council before starting works to check they were in safe receipt of the notice and to obtain written confirmation. I take the view that to press ahead with development without taking such steps was a risky strategy to take. Although I have no reason to believe that the appellant did not fully intend to submit a CN and, indeed, he believed that he had done so, unfortunately he has been unable to provide any documentary evidence to demonstrate that a CN was actually submitted to the Council before works on the chargeable development commenced.”
Lesson: Failure to submit a required CIL notice on the council in time, whether due to an innocent mistake or not, can trigger unfortunate additional financial costs to a development. Given such importance, although it’s ‘belt and braces’, you should take greater care in the method of service and confirmation of receipt. Double check postal and email addresses. As the inspector noted in the above, consider checking receipt with the council, especially if the notice is sent by email. Alternatively, send the notice by recorded delivery. Always keep complete records evidencing service and receipt.
