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Recent Community Infrastructure Levy (CIL) Decisions

Simon Dimmick

Simon Dimmick, Partner in our Planning & Environmental law team, looks at recent Community Infrastructure Levy (CIL) appeal decisions that highlight the need to follow the procedure to the letter.

Thie below follows on from our recent blog article, Community Infrastructure Levy (CIL) – 10 Things to Remember.

Failure to Submit Valid Commencement Notice

An appellant appealed against the imposition of a CIL surcharge for failing to submit a Commencement Notice. The appellant stated that he had hand delivered an assumption of liability form, self-build exemption form and a commencement notice to the Council on 29 March 2017. However, planning permission was not granted until 24 May 2017 and accordingly the submitted Commencement Notice would not have been valid as Regulation 67(2) requires the Commencement Notice to identify the liability notice issued in respect of a chargeable development and the liability notice has to be issued following the grant of planning permission. Accordingly, the Inspector upheld the surcharge albeit expressing sympathy for the appellant if he made a genuine mistake.

In another appeal, the appellant’s agent contended that he had submitted a commencement notice by first class post on 5 September 2016. The Council argued that they did not receive the Commencement Notice and accordingly issued a surcharge. The agent argued that the Council’s own practices required documentation to be sent by first class, not registered or recorded post. The Inspector stated that by sending the Commencement Notice by first class, where no proof of postage is obtained, the appellant was opening himself up to risk. Further, the Inspector confirmed that it would not have been unreasonable to expect the appellant or his agent to contact the Council to confirm that the notice had been received. Unfortunately, due to lack of evidence before the Inspector to prove postage the Inspector could not be satisfied that a Commencement Notice had been submitted and accordingly dismissed the appeal and upheld the surcharge.

Reliance on Agents

In another appeal, the appellant was appealing a surcharge for failing to submit a valid Commencement Notice on the grounds that the Council had failed to serve a liability notice on the appellant. The planning application gave the appellant’s agent’s details rather than any correspondence details for the appellant. Accordingly, the Council had sent the liability notice to the appellant’s agents with a warning reminding the agent to forward the liability notice onto the appellant. The appellant argued that the liability notice should have been served on him. Regulation 126(e) provides that e-communications can be sent to an address given for service. Accordingly, the Council had met its service requirements. The Inspector therefore upheld the surcharge finding no fault on the Council’s part. The Inspector did express sympathy for the appellant for the failure of the agent to forward on the liability notice but noted that it was not his remit to consider this failure and accordingly the appellant would need to take that up with the agent directly.

We would recommend you seek advice as to the process and ensure that each of the relevant forms are submitted at the correct time.

For more information, please contact a member of our Planning & Environmental Law team.

This blog article was produced with support from Kayleigh Chapman.

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.