A developer has been unsuccessful in its bid to argue that liability to pay over £870,000 under the CIL Regulations should have been assessed on the basis that the development was taking place pursuant to a phased planning permission.
Under the CIL Regulations, CIL is payable in respect of chargeable development for which planning permission has been granted. Where development is pursuant to a phased planning permission, each phase is a separate chargeable development. This provides a mechanism for developers of larger schemes to spread the payment of CIL across phases.
The original outline permission granted for the development in March 2016 was not phased. A non-material amendment was granted under section 96A of the Town and Country Planning Act 1990 in February 2019 incorporating a reference to a new plan which showed that the development would be undertaken in three phases.
In the interim, the developer had provided a completed Assumption of Liability Form to the Council in April 2017 and development was commenced in October 2018, triggering liability to pay CIL. The developer argued that it was required to pay only for the scheme’s first phase that had commenced.
The judge disagreed, holding that, having assumed liability to pay, the effect of regulation 31 was that when work commenced the developer became liable to pay CIL in respect of the whole development. As at October 2018 when the development commenced, the chargeable development was the development permitted by the March 2016 permission which was not phased. The non-material amendment to the March 2016 permission granted after the commencement of development did not alter the position.
Moral of the story: If you want to phase your CIL liability, make sure that planning permission is granted with express reference to phases - or ensure that any amendments to it requiring phasing are in place before you start on site. Consider the routes of appeal under the CIL regulations if necessary, as judicial review may not be an appropriate remedy.
A developer has failed in a High Court bid to avoid paying the entire community infrastructure levy (CIL) bill for its 81-home scheme in Somerset in one go, after a judge rejected its argument that it was entitled to pay only for the scheme's first phase that had commenced development.