RE: CIL in-use evidence query for existing gia or dmolition discount - Public forum - Planning Advisory Service (PAS)

Hi,

It is the evidence package that I rely on, not a single particular piece of evidence.

It is usually the conflict in evidence that makes it easier to reject than approve. Fore instance, estimated water bills, Business rates empty exemption, Google Street view images over time, Tenancy agreement with company that is no longer trading, etc.

You need to look at all the documents that are provided and see if it gives enough certainty to make a decision.

Hi Suraiya

This is the short version from our guidance note, though not sure how much this would help with agricultural buildings.

I'm willing to share our guidance note via email if that may be of assistance.

The Community Infrastructure Levy Regulations 2010 (as amended), Schedule 1 (Regulation 40) allows for existing floor space that has been in continuous lawful use for at least 6 months in past 3 years from the day that planning permission is granted, the approval of the final reserved matter on an outline application or on receipt of a Notice of Chargeable Development for permitted development or a prior approval application (first permits) to be used as deductible floor space against the CIL charge for the development.

Refer to Schedule 1 (Regulation 40) for full details and definitions

The following documents will be considered for demonstrating existing (and active) lawful use.

• • Utility bills
  • Planning permission establishing lawful use (i.e. the extant permission/ Certificates of use)
  • Water / Rates Bill
  • Copy of relevant lease agreement/s
  • Invoices
  • Council Tax
  • Business Rates
  • Goods in / out
  • Photographic evidence (date stamped)

NB: It should be noted that this is by no means an exhaustive list, and it may be that only certain items may be appropriate depending on the circumstances.

The following thoughts are not to be used in any appeal made to PINS and the views expresssed are my own.

Interesting discussion on evidential burden. A few points to consider:

(1) the leading case in this area is R (oao Hourhope Limited) v Shropshire [2015] EWHC 518 (Admin) which concerned a closed public house. This decision confirmed that lawful use in this context meant more than just the permitted planning use of the building but actual use.

(2) A review of the VOA s114 appeals will also assist in understanding what type/kind of evidence is needed to support the contention that the relevant building was an “in-use building”. The owner/developer must show, on the balance of probabilities, that the two preconditions for in-use have been met. This is in line with paragraph 1(8) Sch 1 which confers the power on the authority to deem a building not to be an “in-use building” if there is not sufficient information or information of sufficient quality to enable it to establish that the building qualifies.

(3) the building has a lawful use but there must be an actual lawful use for the required continuous six month period. In Hourhope the building still had much of the equipment, furnishings, fixtures and chattels connected with the pub business but that was held not to be sufficient to satisfy the requirement. be careful with ancillary uses (which, I'm afraid, is a planning land-use concept which must be understodd in the context of CIL. For example, storage of equipment in a public house may well be ancillary to the main use as a public house and was not a principal use so it did not cause the building to qualify as an “in-use building” in Hourthorpe. Another example is catering equipment and an extractor left in the building which was otherwise vacated was not enough. Again, have a quick scan of VOA s114 appeals.

Hi Ahsan, thank you for your input. Yes, we also take the same approach that the use has to be lawful as well as an actual use during the requisite period of continuous six months preceding planning decision date. The onus is on the developer to provide regorous evidence.

Make sure you don't apply the criminal burden - beyond resonable doubt. The civil burden - on the balance of probabilities - is the right test. A developer should be able to produce sufficient documentary evidence to show actual use for the whole period.