The High Court decision in R. (on the application of Orbital Shopping Park Swindon Ltd) v Swindon BC [2016] confirms that two separate planning permissions cannot be combined so as to attract liability for the community infrastructure levy.
The case concerned a judicial review of a Local Authority's decision that the owner of a retail unit had to pay CIL after making alterations to the unit following two separate planning permissions. The first permission related to works to install a mezzanine floor and (by itself) would be exempt because it fell within the exemption in regulation 6(1)(c) of the Community Infrastructure Levy Regulations 2010. The second related to external alterations to the unit which created no additional floor space and therefore was not CIL liable. The Local Authority sent the owner a liability notice treating the two permissions as one for CIL purposes, and then a demand notice requiring payment of the levy.
The Court found there was nothing on the face of the mezzanine planning permission to link it with the planning permission for external alterations. Further, each permission would be entered separately upon the planning register that the authority was required to maintain. Nothing on that public record would indicate that the two separate permissions should be seen as one. There was, therefore, no basis in the statutory provisions or in planning law which supported the authority's argument that the two permissions should be treated as one. In addition, there had been no manipulation of the system for any ulterior or illegal motive as the owner had simply taken advantage of the legislative scheme which permitted it to submit two separate planning applications for each act of operational development that it wished to pursue. If it was not the intention of the legislature to permit that to occur then it was for the legislature to change it. Furthermore, despite pressing a purposive intention of the statutory provisions in general, the Local Authority had not identified which particular provision should be so interpreted so as to entitle it to act as it did in charging the levy. Accordingly, the Court ruled that the Local Authority had not acted lawfully in demanding the levy under its liability and demand notices by interpreting the two separate planning permissions as one.
