s73A application . Relief therefore not available. Appn withdrawn - Public forum - Planning Advisory Service (PAS)

HI Sonia

I assume the s73a showed an increase in the amount of floorpsace and thefore an increase the amount of CIL payable.  With or without approval of s73a I would have thought the increase in CIL payment would still be required.  With or without planning permisison CIL is still payable.

In terms of EN if it is acceptable in planning terms you can't really serve an enforcement notice?  

What were the changes made to the original consent?

Mark

HI Mark

Thanks for replying. As its a retrospective application under s73A they can no longer claim relief and so CIL is liable.

The Regulations only seem to apply when planning permission granted so therefore don't apply if the application is withdrawn. So the only way round this I can see is to get planning permission granted by PINs following appeal against an enforcement notice.

I'm happy to be corrected if I've mis-interpreted any of this.

Sonia

Sonia,

Is the S73 as a result of building not in accordance with the original permission?  Christopher Cant has two interesting articles, one on S73 applications and one on retropsective applications. Maybe worth having a look at.

My feeling would be that if the S73 was as a result of the original development not being built in accordance with the original permission then they would be liable, withdrawing the application would appear to be a loophole but they would still have to regularise the development in some way, unless of course they revert to the original permission and rebuild the development in accordance. Then their self build would stand. Have a look at the articles below..

https://christophercant.co.uk/wp-content/uploads/2019/09/Section-73-permissions-and-the-new-CIL-Regulations.pdf

https://christophercant.co.uk/wp-content/uploads/2017/07/Retrospective-planning-permissions-and-Community-Infrastructure-Levy.pdf

Kirstin

HI Kirstin

Thanks for this. Yes they are liable as retrospective.

But the problem is they have no withdrawn the application and so there is no liability without a planning permission. Yet the development has been built. I just wondered what others had done in the circumstances, eg served an enforcement notice in order to lead to a planning permission which we can then issue CIL liability on.

Sonia

Sonia,

Would your enorcement team enforce, are the differences sufficiently different? We've had a couple like that andin the end we were unable to take it any further as the Enforcement team would go no further. We ended up making sure that they complied with the self build exemption.

I would be interested to hear what you decide, sorry I couldn't be more help.

KIrstin

Thanks Kirstin. We had a few objections to the changes and we think members might have overturned the recommendation. So we will need to consult Members in deciding whether expedient to enforce so we may well enforce still. 

I wascurious whether it was a common thing for applicants to withdraw applications which they subsequently found out were liable to CIL before a decision was issued. Its not something we've really come across before.

Thanks

Sonia,

I've been working with CIL since 2016 in various capacities, both as a DM Officer and then as the CIL and S106 monitoring officer and have only come across it twice in that time, so not common at all. Good luck and let me know how you get on (Kirstin.roberts@wealden.gov.uk)

Kirstin

From what I can see are we are talking about a self build unit.  Is that correct?

My understanding of the regs was that if a s73 was granted and if no change to the liability was affected by the s73 change then the original CIL liability notice would stand.  So if this relates to an affordable house or self build that has been changed, although development has commenced the original relief granted should still apply?  Surely then if no permisison has been granted, because it was withdrawn, the same applies?

Obviousy there is the question of whether s73 was necessary?  Could a s96a of been used?  Having said that the CIL Regulations are quiet in respect of s96a but I assume as such the original liability notice woudl still stand?

In terms of enforcement, I have not done much enforcement reltated work recently but if on balance you consider it to be acceptable, are you able to take enforcement action just because they have avoided CIL?  In respect of regularisation certainly that is to be encouraged but you cannot force them to do so or threaten them enformcement action if they decline.

Mark

Perhaps not directly relevant to your exact question but there is Court of Appeal decision this week around CIL and S73 permissions

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1716.html

I had a planning permission that initially was considered as retrospective (as built drawings were approved and enforcement notice was served to regularise the works). Cil applied and we issued a default liability notice. However, enforcement notice was withdrawn after few months because of the planning breach rules (4 and 10 year rules). The applicant's lawyer was asking to remove the cil liability. After research on what retrospective permission is (a decision notice should state that the permission is retrospective) and liasing with enforcement and our  lawyers, we did remove the default liability and replaced it with a no assumption liability because even though the proposed works were completed , without the enforcement notice we could not consider that the permission was commenced for CIL. My understanding is that the 'as built' permission will expire and they will not implement it so they don't pay CIL and they are also not obliged to submit a new permission to regularise the works because of the number of years. 

How very silly - refusing to deal with one DM enforcement issue doen't make the other CIL issue go away. If only they would just sue whichever agent built the wrong thing rather than playing games with the council. I'm sure the parties should all be insured for legal fees to cover something like this.  Just, bare bones- they have built CIL-liable development without doing the correct paperwork or paying the neccesary CIL pre-commencement, even though they had permission for something else slightly different. Doesn't that mean that any and all exemptions they thought they had are lost and they will have to pay the full wack whatever happens, completely seperate from the DM processes. Withdrawing the app doesn't change that they owe you money, unless they're going to knock it down and build what they had permission for in their first CIL paperwork?  For regularising the development, thats enforcement now, espescially if the developer/ agent is playing silly-buggers. Could end up getting decided by an appeal against the enforcement notice or could just pass the 4yr/ 10yr rule without action, you've not identified any clear harm or political pressure to chase them.