In a recent redacted Planning Inspectorate decision, a developer appealed against a Community Infrastructure Levy (CIL) surcharge which was imposed by Wakefield Council for an alleged breach of the CIL Regulations; namely the failure to submit a Commencement Notice (CN) before they carried out demolition works in respect of a chargeable development. Regulation 83 of the CIL Regulations states that if works commence on a chargeable development before the Council has received a CN, the Council may impose a surcharge equal to 20 per cent of the chargeable amount payable in respect of the development or £2,500, whichever amount is the lowest. The developer appealed against the imposition of the surcharge on two grounds. First, that the alleged breach, which led to the imposition of the surcharge, had not occurred and, secondly, that the deemed commencement date was incorrectly determined by the Council.

On the first ground of appeal, the developer claimed that they had carried out demolition works before planning permission was granted, and therefore, works under the planning permission had not commenced so that a CN did not need to be submitted. The Inspector upheld the surcharge on the basis that Section 56(4) of the Town and County Planning Act 1990, which defined a material operation constituting the commencement of development, includes demolition, and the planning permission included demolition in the description of development. Therefore, the Inspector was satisfied that the demolition works carried out by the developer formed part of the chargeable development. The Inspector did not accept that the developer was immune from paying CIL simply on the basis that the Council had been aware of the demolition works and that the permission was granted retrospectively. The Inspector held that it was impossible for the CN to be submitted prior to the commencement of the demolition works because the planning permission was provided retrospectively. As the appellant had carried out the works before having obtained planning permission, the normal sequence of events had been disrupted. Despite this, the Inspector decided that once the retrospective permission was granted, the developer became liable for the CIL surcharge. 

On the second ground of appeal, the developer argued that the Council had incorrectly determined the deemed date of commencement of the works. The Council had determined the date to be 18 July 2019 as that was when it had visited the site. The Inspector found that the date was incorrect, and the deemed commencement date should have been the date the retrospective planning permission was granted (12 July 2019) as CIL Regulation 7(5)(a) applied. However, the Inspector decided that, as the earlier commencement date could have resulted in the developer being liable to pay further surcharges and/or interest, and because the Council were in agreement, it was expedient to accept the Council's later date of 18 July 2019 as the deemed commencement date. A CN had not been served by this date, therefore the CIL surcharge was due, and the developer's appeal was dismissed. 

The decision means that where retrospective planning permission is obtained for a chargeable development that has already been implemented, a CIL surcharge cannot be avoided. Lesson number one is, of course, don't carry out development in breach of planning control. However, where this can't be avoided, think carefully about how you frame your application.  Where only demolition works have been carried out, you could argue that those works were carried out under permitted development rights (and apply for the necessary prior approval) so that you separate the consent for the demolition works from the development of new built floorspace on which CIL is payable. Just make sure you don't make a start on the new built floorspace before you've got the permission and served your CIL commencement notice.