Nathan Gardiner v Hertsmere Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 06 July 2021 |
| Neutral Citation | [2021] EWHC 1875 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3200/2020 |
[2021] EWHC 1875 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mrs Justice Thornton DBE
Case No: CO/3200/2020
and
Ms Saira Kabir Sheikh QC (instructed by JS Planning Law Ltd) for the Claimant
Ms Emmaline Lambert (instructed by Hertsmere Borough Council) for the Defendant
Mr Ben Du Feu (instructed by Government Legal Department) for the Interested Party
Hearing date: 09 June 2021
Judgment Approved by the court
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Introduction
The Community Infrastructure Levy (CIL) is a levy, the purpose of which is to ensure that the costs incurred by public authorities in supporting the development of an area can be funded by the owners or developers of land without rendering development of the area unviable. It is intended to be fairer, quicker, more certain and more transparent than the previous system of contributions collected via planning obligations under section 106 of the Town and Country Planning Act 1990 (TCPA). More development now contributes to infrastructure. It is a set charge payable at a defined point. It aims to minimise the administrative burden on collecting authorities.
Certain reliefs and exemptions from liability to pay CIL are obtainable. These include an exemption for self-build, introduced in 2014, to help incentivise self-build homes in order to increase and diversify housing supply.
This claim for judicial review raises a point of principle as to whether the self-build exemption provided for in Regulation 54A of the Community Infrastructure Regulations (2010/948) (the CIL Regulations) applies to the grant of planning permission, pursuant to S73A TCPA, for development already carried out. The Claimant contends that, on the plain wording of the CIL Regulations, the exemption does so apply, and this is consistent with the purpose of the exemption. The Defendant and Interested Party disagree.
The Claimant also submits that the Defendant conducted itself unlawfully and unreasonably in processing the Claimant's application for the exemption. However, it was common ground at the hearing that these procedural complaints stand or fall in accordance with the Court's determination of the point of principle. This is because the Defendant conducted itself in accordance with its interpretation of the CIL Regulations.
The Claimant is a self-builder who obtained planning permission for partial demolition of, and extension to, his existing chalet bungalow at 59 Aldenham Avenue, Radlett, Hertfordshire, WD7 8JA (“the Site”). CIL was not payable as the Defendant exempts residential extensions from the levy. The Defendant's planning officers visited the site during the course of the demolition work and considered that the works undertaken had gone beyond the works authorised by the planning permission. They were of the view that the development was unauthorised. In response the Claimant submitted a new planning application to regularise the demolition works undertaken and to permit the subsequent rebuild now required (as opposed to the former extension) of the house. Planning permission was subsequently granted, part-retrospectively, pursuant to s.73A TCPA for the demolition and the erection of a new detached 6-bed dwelling.
The Defendant is the charging and collecting authority for CIL in the area of Radlett, Hertfordshire. The Interested Party was joined by order of Mr Justice Holgate and directed to produce written submissions to assist the Court as the claim raises issues of interpretation of the CIL Regulations which may have wider implications.
The Law
How CIL works
The levy is provided for by section 205 of the Planning Act 2008 (the Act) and the CIL Regulations. The description of the CIL scheme that follows is non-exhaustive, including only matters that are material to determination of the issues in this case.
Liability for CIL (Part 4)
CIL is payable on “chargeable developments”, which means a development for which ‘planning permission is granted’ (Regulation 9).
Regulation 31, titled ‘Assumption of liability’ provides as follows:
“(1) A person who wishes to assume liability to pay CIL in respect of a chargeable development must submit an assumption of liability notice to the collecting authority.
(2) An assumption of liability notice must—
(a) be submitted in writing on a form published by the Secretary of State (or a form to substantially the same effect); and
(b) include the particulars specified or referred to in the form.
(3) A person who assumes liability in accordance with this regulation is liable on commencement of the chargeable development to pay an amount of CIL equal to the chargeable amount less the amount of any relief granted in respect of the chargeable development…”
A chargeable development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land (Regulation 7(2)). However, development for which planning permission is granted under section 73A TCPA is to be treated as commencing on the day planning permission for that development is granted (Regulation 7(5)).
Amount of CIL payable (Part 5)
The Collecting Authority must calculate the amount of CIL payable in respect of a chargeable development in accordance with a formula set out in Schedule 1 of the CIL Regulations. The amount is determined on the basis of charging schedules issued by charging authorities (Section 211; Regulation 40).
Exemptions and relief (Part 6)
Various exemptions and relief are set out in Part 6 including exemptions for minor development; residential annexes or extensions; charities and social housing.
An exemption for self-build housing is set out in Regulations 54A-D. Relevant extracts of Regulations 54A and B provide as follows:
“54A. – Exemption for self-build housing
(1) [A] person (P) is eligible for an exemption from liability to pay CIL in respect of a chargeable development, or part of a chargeable development, if it comprises self-build housing or self-build communal development.
(2) Self-build housing is a dwelling built by P (including where built following a commission by P) and occupied by P as P's sole or main residence…
54B. – Exemption for self-build housing: procedure
(1) A person who wishes to benefit from the exemption for self-build housing must submit a claim to the collecting authority in accordance with this regulation.
(2) The claim must –
(a) be made by a person who –
(i) intends to build, or commission the building of, a new dwelling, and intends to occupy the dwelling as their sole or main residence for the duration of the clawback period, and
(ii) has assumed liability to pay CIL in respect of the new dwelling,…
(b) subject to paragraph (3A), be received by the collecting authority before commencement of the chargeable development;
(c) be submitted to the collecting authority in writing on a form published by the Secretary of State (or a form substantially to the same effect);
(d) include the particulars specified or referred to in the form;…
(3) Subject to paragraph (3A), a claim under this regulation will lapse where the chargeable development to which it relates is commenced before the collecting authority has notified the claimant of its decision on the claim.
(3A) Paragraphs (2)(b) and (3) do not apply where an exemption for self-build housing has been granted in relation to a chargeable development and the provision of self-build housing or self-build communal development changes after the commencement of that development.
(4) As soon as practicable after receiving a valid claim […] the collecting authority must grant the exemption and notify the claimant in writing of the exemption granted (or the amount of relief granted, as the case may be)…
(5) A claim for an exemption for self-build housing is valid if it complies with the requirements of paragraph (2).”
Administration (Part 8)
(a) Notices
The Regulations provide for a series of notices to be served.
Liability Notice: As soon as practicable after the day on which planning permission first permits development, a charging authority must issue and serve a Liability Notice on a person who has assumed liability to pay CIL (Regulation 65(1)). The Liability Notice is required, amongst other matters, to describe the chargeable development (65(1)(b)) and state the chargeable amount (65(1)(d)).
Commencement Notice: After the Liability Notice has been issued, any person intending to commence work on a chargeable development must submit a Commencement Notice to the charging authority. This notice must be submitted no later than the day before the day on which the chargeable development is to be commenced, and is required, among other matters, to identify the relevant Liability Notice and the intended commencement date of the chargeable development (Regulation 67).
Demand Notice: Following receipt of a Commencement Notice the charging authority must serve a Demand Notice “on each person liable to pay an amount of CIL in respect of a chargeable development” (Regulation 69(1)). The Demand Notice must state the intended commencement date; the amount payable and the day on which payment of the amount is due. (Regulation 69(2)).
(b) Payment Periods
Regulation 70 provides for the payment periods for CIL. The consequences of nonpayment are explained in Regulation 70(8).
Appeals (Part 10)
A person who is aggrieved at a decision of a collecting...
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