A recent appeal decision from the Planning Inspectorate has highlighted the unintended consequences for developers of an early start on site and the need to carefully understand exactly what the planning permission authorises before embarking on preliminary works.

This case involved an appeal against an assessment of liability for Community Infrastructure Levy (CIL) and imposition of penalities for breach of regulations. The Local Authority alleged that the developer had commenced development authorised by a planning permission and failed to serve a Commencement Notice which would have given rise to the payment of CIL in relation to that development.

The Developer argued that the works in question involved merely preliminary works of demolition in order to enable retaining structures to be constructed as contemplated by the planning permission. The problem for the developer was that the planning permission itself described the authorised development as including “demolition”.

Section 56 of the Town and Country Planning Act which defines “development” makes it clear that material operations on a property include any work of demolition of a building.

The decision in retrospect appears straightforward. The express reference in the terms of the planning permission to the authorised development as including demolition made it hard for the decision to have a result other than in favour of the Council.

The consequence for the developer was that (a) the developer suffered a surcharge under the Regulations for starting work without serving a Commencement Notice and (b) the liability for CIL started at a much earlier date than the developer had intended, with consequences for interest payments etc.

Furthermore, although it is unclear from this case whether this would also apply to this development, a developer who fails to comply with the procedure also loses the opportunity to pay CIL by instalments.