Have any other CIL Charging Authorities had cases where a developer, in attempting to offset CIL liability, has attempted to use the definition of an ‘in-use building’ which does not form part of the same planning unit?
We have a case where a developer is redeveloping the vacant first and second floors of an existing building for residential use. Before becoming vacant, the first and second floors had a planning permission for an assembly and leisure use. The residential development is CIL-liable. Planning permission has been granted and development has commenced. A CIL Demand Notice has been issued and the CIL payment is now due.
The ground floor of the building operates as a restaurant under a separate planning permission.
The developer of the upper floors has now requested a review of the chargeable amount on the basis that part of the building (the restaurant on the ground floor) is in use, and therefore, because it forms part of the same building, the floorspace from the ground floor should be offset against the CIL liability on the upper floors, on the basis of the definition in CIL Regulation 40.
Our view is that since the in-use floorspace on the ground floor does not form part of the same planning permission, planning unit, or CIL-liable floorspace, it cannot legitimately be included within the definition of an ‘in-use’ building in order to offset the CIL liability on the first and second floors.
Has anyone experienced a similar case or argument in relation to Regulation 40?
Thanks
