Deemed commencements and revised applications - Public forum - Planning Advisory Service (PAS)
Deemed commencements and revised applications
An applicant received planning approval to build a new garage and a new dwelling. The approval was liable for CIL (i.e both elements). The applicant applied for and was granted exemption, but failed to submit a commencement notice so we deemed commencement, revoked exemption, applied surcharges and issued a demand notice. The applicant has appealed to PINS regarding the deemed commencement.
Since appealing, the applicant has submitted two new applications that serve to split the development into its separate elements - one application for the garage (below the CIL liability threshold) and one application for the dwelling (liable). PINS are holding off any decision until the applications are determined as the applicant appears intent to withdraw the appeal should he receive permission. He seems to think that, subject to both new applications being approved, that the new applications will effectively supercede his original, implemented permission, which means that the dwelling will, through a new permission, be given a new liability that will enable him to reapply for exemption. The question of whether, and what aspects of, the development has already commenced is therefore important.
To date, the separate garage application has been approved and the dwelling application is still pending consideration. The applicant claims it is just the garage element he has commenced, and so is not yet liable for the dwelling. Although implementation of the original permission would arguably appear to trigger a start on both elements contained within that planning approval.
We've discussed this at length internally as to how the deemed commencement will affect the two new permissions (or vice versa) and which liability we will need to pursue/enforce. Does the current commencement mean that he will have also commenced on the two new applications (and so be unable to apply for exemption on the dwelling)? Or will their permissions serve to 'restart' the CIL and avoid his current demand notice?
Has anyone had experience of this? Or can offer advice on where we stand?
Thanks!!
Carol Gore, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Helen,
Personally, I would view it that the two applications for a garage and a dwelling are full applications in their own right, and have their own liabilities attached.
These applications do not supercede the previous Demand Notice for the original application.
As far as I am concerned, implementation of different planning permissions does not discharge early CIL Liabilities, that is why Reg.74A and 74B exisits!! People can submit new applications, but must discharge from the the original by following Reg74B. As he has now stated that the new application for just the garage has commenced, then he cannot now comply with Reg74B, as the process has to be be done before implementing the new planning permission.
The issue here is the commencement of the original planning permission. You have deemed that it has commenced, he disagrees. Therefore, you currently have an active, live Demand Notice in force, and all the enforcement options CIL offers you for recovery. It is for him to prove otherwise. The approval of the later applications means he can apply for exemption on those applications, but is still liable for CIL on the original pp.
I may be wrong, but that is our approach. The Regs offer opportunities for people to amend permissions, or apply for new ones, without incurring CIL, or double charging, so long as they follow the procedures. So my thinking is why would it then be OK to just revoke CIL on an active, commenced developement, regardless of newer planning applications?
Rebecca Randall, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 60 Join Date: 06/05/14 Recent PostsThanks both. This case is a complete headache!
Abatement doesn't seem applicable in this case because he hasn't paid anything yet (Reg 74B(3b)) and has already confirmed he has commenced (Reg 74B(3a)). Abatement only works to credit amounts already paid.
So, as I interpret this... the demand notice on the original permission still stands (unless he wins his appeal against the deemed commencement), irrespective of any new permissions. If the new house receives approval, it will trigger its own liability, which he could claim self-build exemption on providing we don't consider that development to have already commenced under the original permission and refuse the claim. The house will therefore either result in an application for exemption (so not increase his existing charge) or a refusal for exemption (in which case you'd assume he'd just stick with the original implemented permission or risk double charging). The new garage permission is not liable but he's already clearly implemented his garage build under the original liable permission so incurs the full charge. Meaning that, in any case, he will still be liable to pay the current demand notice, irrespective of new permissions. At worst, he'll end up double charged. Does that sound correct?
We've asked PINS for an opinion on this.
Simon Anstey, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 74 Join Date: 17/07/15 Recent PostsI have been following this thread with interest but have concerns with the conclusions that are being reached. I appreciate in this situation it appears that the applicant is looking for a reason to avoid CIL but how would it be treated if it was an honest and genuine application?
I read the Abatement regulation as establishing a method where planning permissions already started can be stopped and changed to a new replacement permission.
What about a case where someone has permission for a house. They start work and have been sent a demand notice. A family member has an accident and now needs special accommodation to meet the needs of their disabilities. They have the house redesigned and apply for planning permission which is granted. The conclusion from this thread appears to be that they will be liable for CIL on the first house and liable for CIL on the second house.
If they had applied for and been granted a self-build exemption on the first house the conclusion from the thread appears to be that they cannot meet the conditions of the exemption as they will never be able to provide a completion certificate. They could still claim their exemption on the second house but would have to pay full CIL on the first, although if you are saying that the second house has already commenced on commencement of the first house, then they can’t qualify for the second exemption either.
Regulations 74(b) appear to me to cater for the above situations in that a second planning permission can replace the first and a new CIL case can also replace the first.
In Helen’s example the problem is that the applicant fell foul of the requirement to submit a Form 6 and it seems unreasonable that he can get out of his payment by submitting a replacement planning permission. If my reasoning above is correct I don’t see how he can still be held to account.
Are his subsequent applications different enough to the first to necessitate new planning permissions?
Rebecca Randall, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 60 Join Date: 06/05/14 Recent PostsTo be honest, I'm not sure how applicable S.74 is at this stage. Abatement concerns crediting any CIL paid on the original permission against any new permission. No CIL has been paid on either, so they really need to resolve the Demand Notice on the original permission - either by winning their CIL Appeal or paying up - before making any requests under R.74, at which point they could then apply if they meet all the requirements.
I agree that if the new application for the house element can go under S73 rather than a full permission this should be considered (perhaps by the applicant withdrawing their current app and submitting a S73) because that could give more scope for more fairly apportioning CIL to the relevant permission.
Carol Gore, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Richard, I see your point, but your scenario above (in my opinion!) would not be the same. Here, he has failed to follow the CIL regulations, and did not submit CIL Form 6, from which this has all started. By applying for a new permission, he cannot discharge his CIL obligations to the first permmission.
However, in your scenario, lets say the people have been granted Self-Build Exemption for the first permission. All procedures are followed, its all good. A CLN is issued informing them that they have been granted the Self-Build Relief, and they submit CIL Form 6 PRIOR to commencement.
Then, unfortunately, they need to make a change to the design to accomodate the family member who has had an accident. So long as they apply for the permission BEFORE building the amendments, then they can apply for the exemption again. They just need to ensure they submit CIL Form 7 Part 1, and CIL Form 1 again, await a CLN granting Self-Build Exemption, then submit a CIL Form 6 with the date of intended commencement / implementation of the new permission, and notice that work is ceasing under the previous permission (Reg74B(1)). The notice of work ceasing means that we then do not chase for a completion cert etc under the original permission.
Is that the type of scenario you were thinking of, or have I missed your point? ( it happens :-/ ) The CIl Regs do allow for changes, so long as people follow the regulations and processes.
Simon Anstey, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 74 Join Date: 17/07/15 Recent PostsCarol,
You have grasped my point exactly and your example is good. You highlight that the key point is the differences between the first and second permission haven't been started prior to the correct CIL process being followed, which I agree is key. In Helen's original scenario we don't know what the differences were (apart from the house and garage beign separate applications). What if he hasn't started on any of the differences between the first and second applications?
In my example, how would it be treated if a Form 6 had not been submitted on the first application? Would they also have to foreit the exemption on the second application?
Simon
Simon Anstey, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 74 Join Date: 17/07/15 Recent PostsI suppose that what we are saying in Helen's scenario, is that her applicant could apply for new permissions and apply for CIL exemptions but because he started work on his first permission without submitting Form 6, he is liable for that payment whatever he does subsequently.
This could be backed up by Regulation 71(2)
(2) Where the collecting authority determines a deemed commencement for a chargeable
development, the amount of CIL payable in respect of that chargeable development is due in full
on the deemed commencement date.
Carol Gore, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Richard,
Bang on target.
There is, then, the problem with retrospective applications in that they cannot claim exemptions, as the deemed commencement date of retrospective applications is the date the permission is granted. Meaning it is impossible to receive the CLN granting an exemption (as this can only be sent on the day permission is granted at the earliest) and then submit a CIL Form 6 prior to commencement, which secures the exemption. Agents really need to be on the ball advising their clients :-)
Hi Simon, I agree with that from Carol and Rebecca. To answer your question, the applicant appears to be trying to split his original consent into two (1. garage & 2. dwelling) simply to avoid his CIL charge. After we deemed the commencement, the applicant claimed he was building his new garage under permitted development and so it wasn’t liable (less than 100sqm GIA) and he didn’t need to adhere to CIL requirements. But the planning officer confirmed that consent was required for the garage, due to its proposed height, so he had to submit a new application for the garage (which as an individual approval falls below the threshold for CIL). The issue is that at the point at which he began that garage development, the only consent was from his CIL liable approval (for the garage and the house) and as he failed to submit a CN we consider that charge is now due in full. The works to his garage are to demolish it from the right hand side of the house to rebuild it on the left, thereby creating space to build a new dwelling in his garden.
Alison Richards, modified 7 Years ago.
RE: Deemed commencements and revised applications
New Member Posts: 9 Join Date: 17/09/15 Recent PostsOn that note and as an authority relatively new to CIL - today I have been given a retrospective application for a granny annex of 39 sq m which has been granted but is mostly already built. I am assuming that despite its size the applicant would need to have applied for an annex exemption (Form 8), but as it has already commeced, exemption is not an option! Is this correct?
Carol Gore, modified 7 Years ago.
RE: Deemed commencements and revised applications
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Alison,
In my opinion, that is correct. Seems harsh, but there you go.