CIL - discounted floorspace - Public forum - Planning Advisory Service (PAS)
CIL - discounted floorspace
Could anyone help with a case we are currently dealing with? Earlier this year, planning permission was granted for a change of use of a former public house to create offices at ground and first floor. Our CIL charging scheme covers retail uses (former A1-A5) but not offices (former B1). In recognition of the flexibility created by use class E, the permission was conditioned to exclude retail uses. The applicant accepted this condition in order to avoid a CIL liability. Subsequently development commenced but retail uses were created at ground floor level in contravention of the restrictive condition. 7 months later, an application has been received for a change of use of the former public house to unrestricted Class E uses at ground and first floor levels (ie. including retail uses). As part of this application the applicant is claiming that the lawful use of part of the building (first floor) for a 6 month period enables the floorspace across the whole building to be discounted under Reg 40; i.e under the CIL Regulations this is now an in-use building which "contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development". The question is, accepting that this is a single building, can lawful use of the first floor for the previous 6 months be used to discount the floorspace for the whole buuilding, effectively enabling the previously unlawful retail use to now avoid the CIL charge?
Hi Rick, you will need to work alongside your planning enforcement team and establish when development commenced and at what point in time the unauthorised retail use was introduced to the ground floor area. They may need to get to grips with whether the first floor had been split from the ground floor reuslting into 2 separate units of occupation and planning units. If you arrive at a conclusion that the building remianed a single planning unit when the retail use was introduced, the whole building could not have been in a lawful use because the mixed use (office and retail) was unauthorised.
If the first floor forms a self-contained planning unit at the time when the retail use was introduced, the first floor would be in office use albeit an unauthorised use bu that floor space.But if the ground floor was in a mixed office and retail use, it would have been unalwful and so even discounting the ground floor office floor space only would be contrary to Reg 40.
In summary, by introducing the unauthorised retail use and subequently obtaining PP does not overcome the fact that the use was unauthorised (unlawful) and can't be taken into account when calculating CIL amount. Hope this is helpful.
Morning Rick,
I agree with Ashan, the applicant is in contravention of the original planning permission, therefore they owe the CIL monies. To me it appears the change of use would be retrospective as well which would strengthen your case.
Thank you for the replies and advice. This is all very helpful to us in deciding how best to resolve the case.