The installation of mezzanine floors in an existing building which increases retail space by less than 200m2 does not require planning permission and is not classed as ‘development’. This additional floor space is therefore not liable to charge under the Community Infrastructure Levy (“CIL”) unless it forms part of a wider planning permission which permits other works.

You would therefore expect CIL to be chargeable for all those schemes of more than 200m2 as they would be ‘development’… but there is a flaw

CIL is not chargeable where planning permission is granted for development resulting in an increase in internal mezzanine floor space of more than 200m2 which is to be used for the retail sale of goods other than hot food.

If you are considering adding retail floor space in a region where CIL is payable it may be worth introducing a mezzanine floor and splitting your wider development proposal into two separate applications – one for the retail space mezzanine and the other for the rest. The charging authority cannot treat them as a single permission in light of a recent High Court decision. Over £170,000 of CIL liability was saved by a shopping centre owner earlier this year as a consequence of doing this.

Although not a point addressed in the case, if you are considering lodging a planning application for a wider development, be careful not to include a mezzanine floor of less than 200m2 on the drawings as this risks including floor space in the approved development that technically does not require planning permission, but might potentially be construed as subject to CIL as part of the overall approved development.