Community infrastructure levy

March 4th, 2016 by James Goudie KC

In R (Orbital Shopping Park Swindon Ltd) v Swindon BC [2016] EWHC 448 (Admin) Patterson J summarised, so far as relevant to the case before her, the statutory scheme with respect to the Community Infrastructure Levy (“the CIL”), charged by a local authority under Section 206(1) of the Planning Act 2008 (“PA 2008”) and the CIL Regulations 2010, as amended, in respect of development in the authority’s area, as follows:-

  1. A local authority’s power to charge CIL in respect of development within its area arises when development is commenced in reliance on a planning permission involving chargeable development: Section 208 of PA 2008;
  2. The ability to charge CIL is a discretionary one on the part of a charging authority: Section 206 of PA 2008;
  3. The CIL Regulations can provide for works of a specified kind not to be treated as development;
  4. That is what Regulation 6 of the CIL Regulations is concerned with;
  5. Regulation 6(1) sets out expressly which works are not to be treated as development for the purposes of Section 208 of PA 2008;
  6. That includes work in respect of an existing building for which planning permission is required only because of Section 55(2) of the Town and Country Planning Act 1990 (“TCPA 1990”);
  7. Section 55(2)(a) of TCPA 1990 sets out uses of land or operations which are not to be taken to involve development;
  8. Section 55(2)(a)(i) states that works which affect only the interior of the building do not involve development;
  9. Section 55(2A) empowers the SoS, by Development Order, to specify or describe circumstances in which Section 55(2) does not apply to operations set out in Section 55(2)(a);
  10. The SoS has made the Town and Country Planning (Development Management Procedure) (England) Order 2015;
  11. CIL can be imposed only when both the liability and the amount of the liability are clearly defined.

The Council had acted unlawfully by interpreting two separate planning permissions as one. The Claimants had taken advantage of a legislative scheme which permitted it to submit two separate planning applications for each act of operational development that it wished to pursue. There was no manipulation of the system for any ulterior and/illegal motive in splitting the operational works.

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