CIL and Offsetting liability for In-use buildings - Public forum - Planning Advisory Service (PAS)

Hi Nicola,

When we took a case to Magistrates the Solicitor told us that if the liable party provided evidence of lawful in-use then the court would consider it.  So I think that means that if we receive this information we have to act on it.  Even though the regs stated that they only have 28 days after the issue of the liability notice to request a review of the chargeable amount.  Following this advice I have taken any evidence into consideration.  However, it has to be sufficient and it not then I wouldn't accept it and would continue with enforcing recovery of the chargeable amount.

Hello Nicola,

My understanding is that if they pass the lawful use test then the retained space must be considered at any point. According to the CIL regulation 65 - Liability notice the collecting authority can issue a revised notice at any time:

(4) The collecting authority must issue a revised liability notice in respect of a chargeable development if the chargeable amount or any of the particulars mentioned in paragraph (2)(e) or (f) change (whether on appeal or otherwise).

(5) A collecting authority may at any time issue a revised liability notice in respect of a chargeable development.

Hello all,

I think that the important word in (5), above, is "may" and I think that Claire is correct in what she is saying - just because information is provided, it needs to be sufficient to demonstrate that it is not liable, it does not have to be accepted.

Hi,

An interesting discussion thread.

From the perspective of our authority I don't think we would be minded to consider the offsetting post commencement, as Alison has said the wording in 65(5) is 'MAY' and I think thiis is more in relation to clartical errors at initial grant, or a change in Liability (in which we would have to reissue). 

65(4) i think is a bit of a red erring as this relates to the a change in relief. 

From our point of view if they haven't appealed during the appeal timeframe then the situation is as per the notice regardless of information submitted at a later date (particularly post commencement). 

One way to try to avoid this happening is sending a letter early in the application process with what we consider the CIL liability to be (after we have reviewed plans and measured), we have found that we get minimal appeals by doing this as any issues can be negotiated whilst the application is being determined.  It would be interesting to know if any other authorities do this?

Hello,

I would like to point out that I have copied paragraphs (4) and (5) for completeness.

However, in this instance paragraph (5) is relevant and this is why my understanding is that the collecting authority 'may' revise the liability notice. And this is only if they pass the lawful use test for the retained parts for the relevant buildings. Meaning they are in lawful use for continuous 6 months within the last 3 years from planning permission first permits. 

I cannot find any reason for not revising a liability notice to acknowledge this new information for the lawfulness, even if they did not appeal under 113 and 114 previously. When I say 'must', I feal it is our duty to acknowledge the facts and act fairly in accordance with the CIL regulations especially when they allow us to do so with paragraphs such as (4) and (5).

Morning all,

Schedule 1 (Regulations 40 and 50) Part 1 (9) states:

(9) Where the collecting authority does not have sufficient information, or information of sufficient quality, to enable it to establish—

(a) whether part of a building falls within a description in the definitions of KR and E in subparagraph (6); or

(b) the gross internal area of any part of a building falling within such a description,

it may deem the gross internal area of the part in question to be zero.

We have always used this and gone by the plans submitted with the planning application becuase these plans are the ones taken into consideration with the decision making of the application. Therefore additional plans submitted after permission was granted did not form part of the planning application and wouldn't have been considered during that process. I hope this makes sense!.

Therefore, I would not take additional plans into consieration whilst working out the additional GIA for CIL purposes.