The Planning Inspectorate (PINS) have confirmed that a specific date for the intended commencement of a chargeable development must be provided when issuing a Commencement Notice (CN) under the CIL regulations. My colleague Anna Coyle considers the details of this below along with some pragmatic advice about CIL compliance in the current climate.
In a decision dated 20 April, PINS dismissed an appeal against a CIL surcharge imposed by the London Borough of Hackney. The surcharge was imposed for failure to submit a CN prior to commencement of the chargeable development on 29 August 2017, as required under Regulation 67(1) of the CIL Regulations. The Appellant argued that the alleged breach did not occur and provided a copy of a CN dated 24 September 2017 that was supposedly posted to the Council.
The appeal was dismissed on the basis that proof of postage could not be evidenced. The Inspector sympathised with the Appellant’s position but emphasised the risks of using standard post, which does not require a signature. More importantly, the CN that was allegedly issued to the Council would have been ineffective in any event; it did not state an intended commencement date as required by Regulation 67(2)(c). The Inspector confirmed that “ASAP” does not meet this requirement.
The CIL Regulations came into force ten years ago this month, and this case is just the latest in a long line of authorities that demonstrate the importance of strict adherence to its provisions. As the planning industry scrambles to apply pragmatic solutions in the current Covid-19 crisis, no such nuance can be applied to CIL. Charging authorities could try to take the matter into their own hands. East Suffolk Council, for example, have issued a series of CIL ‘commitments’ that are designed to support development. These include a 3 month extension for all CIL instalments. In the absence of legislative amendments or clear guidance from MCHLG, however, we would advise developers to approach attempts to side-step the Regulations with caution.
You may appeal against a surcharge (Regulation 117) imposed by the Community Infrastructure Levy collecting authority on the following grounds: the claimed breach which led to the imposition of the surcharge did not occur; the collecting authority did not serve a liability notice in respect of the chargeable development to which the surcharge relates; or that the surcharge has been calculated incorrectly.