Nathan Gardiner v Hertsmere Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Lord Justice William Davis |
| Judgment Date | 16 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1162 |
| Docket Number | Case No: CA-2021-001796 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 1162
Sir Keith Lindblom
(Senior President of Tribunals)
Lord Justice Edis
and
Lord Justice William Davis
Case No: CA-2021-001796
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(PLANNING COURT)
MRS JUSTICE THORNTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Saira Kabir Sheikh Q.C. (instructed by James Smith (Planning Law Services) Ltd.) for the Appellant
Emmaline Lambert (instructed by Hertsmere Borough Council) for the First Respondent
Richard Honey Q.C. and Ben Du Feu (instructed by the Treasury Solicitor) for the Second Respondent
Hearing date: 18 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down was deemed to be not before 4pm on Tuesday 16 August 2022
The Senior President of Tribunals:
Introduction
This case raises a question of statutory interpretation about the exemption from liability to Community Infrastructure Levy (“CIL”) for “self-build” housing development under regulations 54A and 54B of the Community Infrastructure Levy Regulations 2010, as amended (“the CIL Regulations”). The particular question is whether that exemption is available when planning permission is granted retrospectively for such development, under section 73A of the Town and Country Planning Act 1990. The judge in the court below concluded that it was not. And in my view, as I shall explain, that conclusion was correct.
With permission granted by Lord Justice Bean, the appellant, Nathan Gardiner, appeals against the order of Mrs Justice Thornton dated 6 July 2021, dismissing his claim for judicial review challenging the decision of the first respondent, Hertsmere Borough Council, as collecting authority for CIL in its area, to refuse his claim for the self-build housing exemption, or its failure to grant that claim, and, after retrospective planning permission had been granted under section 73A of the 1990 Act for the partial demolition of his chalet bungalow and the construction of a six-bedroom dwelling at 59 Aldenham Avenue in Radlett, its decision to demand from him a payment of CIL amounting to £118,227.62. The appeal is contested both by the council and by the second respondent, the Secretary of State for Levelling Up, Housing and Communities, who was joined to the proceedings by an order of Mr Justice Holgate dated 1 April 2021 and directed to assist the court with submissions on the claim.
Intending to undertake the building work himself, Mr Gardiner had applied for, and the council as local planning authority had granted, planning permission for the partial demolition of the bungalow and the construction of an extension to it. However, the works he carried out went beyond the scope of that planning permission. He therefore made another application for planning permission, now under section 73A, which the council granted. After that, having decided that the self-build housing exemption was not available, the council also decided to issue a liability notice and a demand notice for CIL. The judge upheld both decisions.
The issue in the appeal
The question of statutory interpretation to which I have referred is central to the issue we have to deal with, which is whether, as the judge held, the council was right to decide that, under the relevant provisions of the CIL Regulations, the self-build housing exemption was not available in the circumstances of this case.
Section 73A of the 1990 Act
Section 73A of the 1990 Act, “Planning permission for development already carried out”, provides:
“(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.
(2) Subsection (1) applies to development carried out –
(a) without planning permission;
(b) in accordance with planning permission granted for a limited period; or
(c) without complying with some condition subject to which planning permission was granted.
(3) Planning permission for such development may be granted so as to have effect from –
(a) the date on which the development was carried out; or
(b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.”
The approach required under these provisions was described by Mr Justice Sullivan, as he then was, in Wilkinson v Rossendale Borough Council [2002] EWHC 1204 (Admin) [2003] J.P.L. 82 (in paragraphs 49 and 50):
“49. … [An] application under s.73A is in all respects, save that the development will have been commenced, a conventional planning application. In dealing with such an application, the local planning authority must have regard to the provisions of the development plan, so far as material, and to any other material considerations. …
50. Absent any provision preventing the local planning authority from considering the planning merits of the development proposed in the application, it is bound to consider the planning merits of permitting the development to continue.”
(see also the “General Note” on section 73A in the Encyclopedia of Planning Law and Practice, at paragraphs P73A.04 to P73A.06).
Under section 171A(1)(a) of the 1990 Act, “carrying out development without the required planning permission … constitutes a breach of planning control”. Section 172(1) gives a local planning authority the power to issue an enforcement notice “where it appears to them … (a) that there has been a breach of planning control …” and “(b) that it is expedient to issue the notice …”.
Section 205 of the Planning Act 2008, “The levy”, provides that the Secretary of State “may with the consent of the Treasury make regulations providing for the imposition of a charge to be known as [CIL]” (subsection (1)), and that “[in] making the regulations the Secretary of State shall aim to ensure that the overall purpose of CIL is to ensure that costs incurred in supporting the development of an area can be funded (wholly or partly) by owners or developers of land in a way that does not make development of the area economically unviable” (subsection (2)). The CIL Regulations were made under that power.
Section 208 of the 2008 Act, “Liability”, provides:
“(1) Where liability to CIL would arise in respect of proposed development (in accordance with provision made by a charging authority under and by virtue of section 206 and CIL regulations) a person may assume liability to pay the levy.
(2) An assumption of liability –
(a) may be made before development commences, and
(b) must be made in accordance with any provision of CIL regulations about the procedure for assuming liability.
(3) A person who assumes liability for CIL before the commencement of development becomes liable when development is commenced in reliance on planning permission.
…
(6) The amount of any liability for CIL is to be calculated by reference to the time when planning permission first permits the development as a result of which the levy becomes payable.
(7) CIL regulations may make provision for liability for CIL to arise where development which requires planning permission is commenced without it (and subsection (6) is subject to this subsection).
…”.
The CIL Regulations
The CIL Regulations came into force on 6 April 2010. They had been published in draft for consultation in July 2009. As originally drafted, they did not include the self-build housing exemption. This was introduced in 2014 by the Community Infrastructure Levy (Amendment) Regulations 2014 (“the 2014 Amendment Regulations”).
Regulation 2, “Interpretation”, defines a “chargeable development” as having “the meaning given in regulation 9”; “relief” as “an exemption for residential annexes or extensions, an exemption for self-build housing, charitable relief, social housing relief or relief for exceptional circumstances”; and “planning permission” as having “the meaning given for the purposes of Part 11 of [the 2008 Act] in regulation 5 …”. In regulation 5, “Meaning of “planning permission””, “planning permission” is defined for the purposes of Part 11 of the 2008 Act as “planning permission granted by a local planning authority under section 70, 73 or 73A of [the 1990 Act] …” (paragraph (1) (a)).
Regulation 7, “Commencement of development”, states:
“…
(2) 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.
…
(5) Development for which planning permission is –
(a) granted under section 73A of [the 1990 Act] (planning permission for development already carried out);
(b) granted or modified under section 177(1) of [the 1990 Act] (grant or modification of planning permission on appeals against enforcement notices),
is to be treated as commencing on the day planning permission for that development is granted or modified (as the case may be).
(6) In this regulation “material operation” has the same meaning as in section 56(4) of [the 1990 Act] (time when development begun).”
Regulation 8, “Time at which planning permission first permits development”, serves to determine “the time at which planning permission is treated as first permitting development for the purposes of Part 11 of [the 2008 Act]” (paragraph (1)), which is “on the day that planning permission is granted for that development” (paragraph (2)).
Regulation 9, “Meaning of “chargeable development”, defines “chargeable development” in this way:
“(1) The chargeable development is the development for which...
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