R Shropshire Council v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton,Mr C.M.G. Ockelton |
| Judgment Date | 16 January 2019 |
| Neutral Citation | [2019] EWHC 16 (Admin) |
| Docket Number | Case No: CO/4218/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 January 2019 |
[2019] EWHC 16 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C. M. G. Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CO/4218/2017
and
Mr Hashi Mohamed (instructed by Sharpe Pritchard LLP) for the Claimant The Defendant did not appear and was not represented
Ms Saira Kabir Sheikh QC (instructed by CLP solicitors) for the Interested Party
Hearing dates: 13 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL
Community Infrastructure Levy (“CIL”) is a planning charge introduced by Part 11 of the Planning Act 2008. It enables local authorities to levy a charge on developments for which planning consent is granted; the income from the charge is then distributed within the local authority area at the various levels at which infrastructure improvements may be needed. It is for each planning authority to decide whether to impose CIL and to determine the rate applicable from time to time; but, if CIL is imposed, all other aspects of liability, collection and other administrative matters are governed by the Community Infrastructure Levy Regulations 2010 as amended (‘the Regulations’).
Where CIL is charged it is in principle chargeable on any development creating more than 100 square metres of additional floor space, as well as any newly built houses or flats. There are a number of important exemptions. For the purposes of the present claim I need focus on only one: that for self-built houses.
THE REGULATIONS
The exemption for self-built houses is to be found for the most part in amendments to the Regulations introduced in 2014. Regulation 54A defines the developments subject to the exemption: self-build housing is a dwelling built by a person (P) (including where built following a commission by P) and occupied by P as P's sole or main residence. Then reg 54B sets out the process for obtaining exemption:
“54B.
(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, whether or not they have also assumed liability to pay CIL in respect of other development;
(b) 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; and
(e) where more than one person has assumed liability to pay CIL in respect of the chargeable development, clearly identify the part of the development that the claim relates to.
(3) 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.
(4) As soon as practicable after receiving a valid claim, and subject to regulation 54A(10), 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).
(6) A person who is granted an exemption for self-build housing ceases to be eligible for that exemption if a commencement notice is not submitted to the collecting authority before the day the chargeable development is commenced.”
Regulation 54C requires a certificate of the completion of the development to be sent to the collecting authority within six months after the development is completed.
Other aspects of the administration of the self-build exemption are in those provisions of the Regulations that apply generally. Those relevant to this claim are as follows.
Regulation 2(1) has definitions, including:
“Commencement notice” means a notice submitted under regulation 67.”
Regulation 2(5)(b) provides that
“References to notices, representations, forms or other documents, or to copies of such documents, include references to such documents or copies of them in electronic form.”
Regulation 67 is as follows:
“Commencement notice
67 (1) Where planning permission is granted for a chargeable development, a commencement notice must be submitted to the collecting authority no later than the day before the day on which the chargeable development is to be commenced.
(2) A commencement notice must—
(a) be submitted in writing on a form published by the Secretary of State (or a form to substantially the same effect);
(b) identify the liability notice issued in respect of the chargeable development;
(c) state the intended commencement date of the chargeable development; and
(d) include the other particulars specified or referred to in the form.
(3) A person submitting a commencement notice must serve a copy of it on each person known to that person as an owner of the relevant land.
(4) On receiving a valid commencement notice the collecting authority must send an acknowledgment of its receipt to the person who submitted it.
(5) Where charitable or social housing relief has been granted in respect of the chargeable development, the acknowledgement must state the date on which the clawback period ends (on the assumption that the chargeable development is commenced on the intended commencement date).
(6) Where a collecting authority receives a valid commencement notice any earlier commencement notice received by it in respect of the same chargeable development ceases to have effect.
(7) A person who has submitted a commencement notice may withdraw it at any time before the commencement of the chargeable development to which it relates by giving notice in writing to the collecting authority.
(8) A commencement notice is valid if it complies with the requirements of paragraph (2).”
Regulation 68 provides that if a collecting authority either believes that a development has commenced but has received no commencement notice, or believes that the date of commencement was earlier than the date in any commencement notice it has received, it must determine the date on which the development was commenced, ‘the deemed commencement date’. The next regulation, reg 69, contains general provisions for the issue of demand notices stating what amount is payable by way of CIL and any surcharges or interest and when payment is due. Regulation 70 provides that if the collecting authority has received a commencement notice the levy is payable in accordance with any instalment policy or otherwise after 60 days, but if the collecting authority has determined a deemed commencement date, the CIL is due in full on the deemed commencement date.
Part 9 of the Regulations is headed ‘Enforcement’. Within that Part, reg 83 permits a collecting authority to impose a surcharge of 20 percent of the amount payable, or £2500 if that is less, if a chargeable development is commenced before the collecting authority has received a valid commencement notice; and reg 87 permits the charging of interest on late payments. Subsequent provisions permit recovery of unpaid CIL and associated charges as a debt. There are rights of appeal to the Secretary of State or a person appointed by him (that is, in all probability, a Planning Inspector) under Part 10. A person aggrieved at a decision to impose a surcharge may appeal under reg 117 on the ground that the claimed breach which led to the imposition of the surcharge did not occur. A person on whom a demand notice stating a deemed commencement date is served may appeal under reg 118 on the ground that the collecting authority has incorrectly determined the date. If an appeal on that ground is allowed, all previously-issued demand notices cease to have effect; the Inspector must determine a revised deemed commencement date, and any surcharge imposed may be quashed.
THE FACTS
Mr Lee Jones, the interested party, obtained planning permission from Shropshire Council, the claimant, to build a detached house with triple garage at Ellesmere, Shropshire. The CIL liability was assessed at £36,861.43, but Mr Jones was a self-builder. He therefore applied as required by reg 54A and received a certificate entitling him to exemption from CIL. Under a s 106 agreement, however, a sum of £9,000 was due within two years of the commencement of development or within three months of the completion of the development, whichever was sooner. On 10 July 2015 Mr Jones sent to Gay Goodwin, a Council official with whom he had been dealing and who had enquired about payment of the £9,000, an email under the heading “RE: Section 106 Agreement relating to land at Mayfield Farm, Elson, Ellesmere -13/102362/OUT & 14/05016/FUL”, reading as follows:
“Dear Gay,
Further to your mail of 17 June, please be advised that site clearance works will begin on site tomorrow 11 July for site 14/05016/FUL.
I understand that the £9000 fee will be payable 2 years from this date or 3 months after project completion, whichever occurs first under the terms of the 106 agreement.
regds
Lee Jones.”
Ms Goodwin replied by email dated 13...
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