Phased Development and CIL Implications

RE: Phased Development and CIL Implications

2025-03-10T08:13:49Z

Thank you Robyn and Ahsan, very useful information.

RE: Phased Development and CIL Implications

2025-03-03T11:37:45Z

Agree this isn't straightforward scenario and should be tackled in a step-by-step approach.

It seems the developer is looking for a work-around liability to pay CIL.

First step is to decide if a NMA application can be used to amend the operative part/description of the original PP. It seems the developer wants to make the original retrospective PP into phased PP so it grants PP for a phased development of 3 stages. I think there are likely to be fundamental differences between the terms of the retrospective PP and the amended phased proposal.

The courts have consistently held that the operative part of the original PP cannot be amended via NMA or s73 route; the former is for non-material amendments to a scheme while the latter is only used to vary conditions. It seems the retrospective PP regularises the demolition of the original dwelling and its replacement with a new dwelling, which is different in substance to a phased development. Perhaps your planning colleagues should consider the recent CoA judgment in Fiske v Test Valley before determining the new applications.

For CIL purposes, OVAL v BANES also makes clear that the decision whether a development is going to be phased needs to be made not just before the commencement of the development but before the planning application. It also indicates that reserving a discretion to phase or not phase will be insufficient; if the intention to phase arises subsequent to grant then action must be taken before the commencement of the development - it's too late once the s73A PP has been implemented through demolition (remember for CIL the date of grant of PP is the commencement date).

There is a possibility of applying under section 73 to vary conditions imposed on the original retrospective PP. Presumably, there is a plans condition which the developer may wish to vary thus introduce a phased plan. However, Reg 2(1) defines a "phased planning permission" which expressly provides for development to be carried out in phases: again, you need to take a view as to whether s73 application can be used to vary a retrospective PP as the development has already commenced.

RE: Phased Development and CIL Implications

2025-02-28T16:00:25Z

Hi Debbie,

That is a confusing one!

In my opinion, as soon as the retrospective planning permission was granted then the CIL became payable, and any subsequent NMAs or S73As wouldn't change that. I'm basing this mainly on the Oval v BANES case (although that wasn't retrospective when the original application was granted), where the inspector says as that the planning permission at the time wasn't phased then the CIL was payable from the original payment date. In Gardiner v Hertsmere, the judge's reasons for not allowing the retrospective exemption include: "The references to ‘intends’ and ‘commission’ are forward looking. They are not consistent with an application by a person who has already built or begun to build a dwelling."

It is difficult, as I think for a prospective application an NMA & S73 would potentially be acceptable to add phasing to a permission, but I don't think there's been a retrospective one tested. I wonder whether your planning officers are likely to grant the subsequent applications, if they don't add anything in planning terms.

Sorry, this isn't particularly useful, we haven't come across one like this yet! I can see the arguable points as in a phased development each phase is a separate chargeable development, so theoretically they would have time to submit a SBE claim, but it doesn't feel like an intention of the regs imo.

Robyn

Phased Development and CIL Implications

2025-02-28T13:28:25Z

Hi all,

Please could you let me know if you have come across the following or can you provide advice of any kind:

We have a scenario where planning permission has been granted for extension works, but the dwelling has been demolished resulting in a retrospective permission being granted for the new dwelling.

We've now received 2 further applications for this site, the first a non material amendment to amend the description to a phased development of 3 stages and a S73 to include the phasing. If these are validated we will not be removing the word 'retrospective' because the development is retro.

Phase 1 would be demolition (because 1 and a half walls of the original dwelling are still in situ -just about!), phase 2 would be groundworks and phase 3 would be construction of a new dwelling.

However, could this mean that the CIL would no longer be due because these permissions (if permitted) would supersede the retrospective permission because:

Reg 9. states. 9.— (1) The chargeable development is the development for which planning permission is granted.

and Reg 7 states

7.— (1) This regulation has effect for determining when development is to be treated as commencing for the purposes of Part 11 of PA 2008.

(2) Development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land.

(3) Paragraph (2) is subject to the following provisions of this regulation.

(4) Development is to be treated as commencing on the day planning permission is granted for that development if planning permission had previously been granted for that development for a limited period.

(5) Development for which planning permission is—

(a) granted under section 73A of TCPA (planning permission for development already

carried out); or

(b) granted or modified under section 177(1) of TCPA 1990 (grant or modification of

planning permission on appeals against enforcement notices),

is to be treated as commencing on the day planning permission for that development is granted or modified (as the case may be).

Therefore, does this mean that with the latest permission the applicants could submit their relief forms because works has not commenced under the new permission? If so, this is a loophole and why has it not been tried before?

I hope the above makes sense and any advice would be much appreciated.