Solicitor Kayleigh Chapman, in our leading Planning & Environmental law team, explains why authorities should ensure that liability notices are served on time.
Regulation 65 of the Community Infrastructure Levy Regulations 2010 (as amended) places a duty on an authority to “issue a liability notice as soon as practicable after the day on which a planning permission first permits development”. Good practice would be to issue the liability notice on the day of or shortly after the planning permission is granted.
Regulation 65 does not provide any consequence for the authority if they failed to do so. A recent appeal decision however demonstrates why authorities should ensure that liability notices are not served months down the line.
In this appeal decision planning permission was granted on 19 January 2018. The Council served the first of four liability notices on 16 July 2018, nearly 6 months later. Development started and the Council issued a surcharge for failing to submit a Commencement Notice. The appellant appealed that surcharge.
The Council claimed that whilst a liability notice was not served prior to 16 July 2018 the appellant would have been aware of the requirement for a commencement notice from other sources. The Inspector dismissed this, describing the CIL regime as “very rigid and formulaic”. Whether or not a person has knowledge of the requirement from another source did “not act as a substitute for the required notice”.
The Inspector found that the liability notice is the trigger for the recipient to serve the forms ahead of commencing works. As the Council had not served the liability notice it was not possible for the appellant to serve a valid commencement notice. A commencement notice of course needs to identify the relevant liability notice; this would not have been possible for the appellant.
The Inspector consequently allowed the appeal and quashed the surcharge.
The failure of local planning authorities to issue liability notices quickly places developers, big or small, in a difficult position. Whilst the appeal decision might encourage local planning authorities to issue liability notices more quickly following the grant of planning permission, it is encouraging to see that they do not escape the consequences of the Regulations where they do not do so. In the above appeal decision the Council will have lost out on a sum of up to £2,500.00.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.