In a case, an application made by a developer for judicial review of a local authority’s decision not to reduce CIL payments was refused.

The applicant developer had planning permission to demolish a pub and redevelop the land for residential purposes. The developer sought to have his CIL liability reduced by virtue of CIL Regulation 40(7), which provides for a reduction in CIL where premises to be demolished and/or redeveloped have been in lawful use for a continuous period of at least six months in the three year period ending on the day permission is granted.

The fate of the application was determined ultimately by the court’s interpretation of the requirement for the building to have been in ‘lawful use’. As the pub had ceased trading before a continuous period of six months could be established, the developer attempted to argue that ‘lawful use’ did not necessarily mean ‘actual use’ and that it was sufficient to demonstrate that the building could lawfully have been used as a pub for the requisite period of time. The developer pointed to the retention of pub-related fixtures and fittings on the land and the pub manager’s continued occupancy of the manager’s accommodation on the site in the hope that the pub might reopen for business.

The defendant council argued and the court ultimately held that while there is no statutory definition of ‘lawful use’, the correct analysis of the CIL Regulations required consideration of the ordinary meaning of the language used, the context of other provisions of the legislation and the purpose of the legislation itself. The words clearly suggested that something more was required than that a building had a use to which it might theoretically be put and it would need therefore to be demonstrated that the building was actually being used for that purpose.

There was a further assessment of circumstances where a building with an active use, such as a factory or shop, had its use interrupted for a period of time and whether it would at that point cease to be ‘in use.’ The court determined that such a cessation would have to be judged in terms of its duration and the reasons for it although it was held that the council was right to say that the use of the premises as a pub ceased when it closed for business without a fixed date for reopening. While the director of the company that had owned the pub had hoped to reopen the pub, no evidence was produced to suggest that his hope was anything more than a mere hope.

R (on the application of HOURHOPE LTD) v SHROPSHIRE COUNCIL (2015)

[2015] EWHC 518 (Admin)