Viable Placemaking have won the most controversial Community Infrastructure Levy (CIL) case in our company's history, in which a Council issued a CIL charge on a recently bereaved wife, as the forms had been completed in her late husband's name.
This case raised several critical questions including:
Who should a Liability Notice be served on?
What is the relationship between Regulation 65 part (1) and (3)?
What are the implications of Regulation 37(1), which stands along within the assumption of liability context?
The courts have been clear, CIL is not about fairness [1]. The rules are strict and there are many tripwires which homeowners, developers, and agents alike fall to, particularly when they enter into planning and development without fully understanding how the rules and Regulations [2] apply to their schemes. However, as a planning consultancy who frequently deal with CIL reviews and appeals, we sometimes find the councils fail in their legislative responsibilities, which are just as strict as those for applicants.
In 2021, a husband and wife bought a property which had obtained planning permission for 3 new dwellings, and took one on to be their own, self build home. The pair were joint tenants, and shared equal rights to the whole site, in line with property law [3].
As part of this process, a Section 73 variation application was submitted, to amend the design and sitting of the dwellings. This was approved by the Local Planning Authority, South Ribble Borough Council, who then, rightly, issued a new Liability Notice under Regulation 65.
Regulation 65 sets out the legislative requirements for a Liability Notice, which all councils must abide by, and has been subject to several High Court and Court of Appeal judgements. More details on CIL Liability and Demand Notices can be found in our Insight, here.
The pair then submitted all the correct information, including the Assumption of Liability Form and Commencement Notice, alongside a Self Build Exemption Claim Form (Part 1) for the unit which was to be their home. It is often the case for partners, in many areas of life, to complete forms in only one name and in this instance, the CIL forms were completed in the husband's name.
Tragically, nearing completion, the husband passed away. Our client then took on these responsibilities and sought to submit the last form required, a Self Build Exemption Claim Form (Part 2) which was to finalise the self-build exemption.
The Council took the stance that, as the forms had been completed in her late husbands name - not her's, she was not eligible for the self-build exemption and would need to pay the full CIL liability - over £20,000.
Expectedly, this attracted massive outrage and controversy from various stakeholders and observers, through which, our fellow planning consultant and friend, Helen Ruffle (Visionary Planning) was able to make introduce us.
Viable Placemaking reviewed the CIL and planning documents and took on the case as part of our pro-bono work, through which we endeavour to support those in planning and development with the most need and in the most dire situations.
Viable Placemaking wrote to the Council, explaining the legislative errors they had made throughout the CIL process. Although the CIL Regulations is strict for applicants, it also provides clear mandates for councils, including the need to issue a Liability Notice as soon as practicable after planning permission first permits the development on each person known to own the land, as per Regulation 65 parts (1) and (3).
Additionally, consideration was given to Regulation 37(1) which states that "where two or more persons are joint owners of an interest in land they shall each be jointly and severally liable to pay any CIL payable in respect of that interest". Jointly and severally’ is a phrase commonly used in law around the world and means that both parties are under the obligation to pay the CIL liability. I.e. – if A and B own land subject to charge P, payment by A or B discharges the obligation. For this project, it gave great implications around the
The case was immediately escalated to the Council's legal team to review, as our case showed complex and interlinked points around the interpretation of the law, and how the Council's CIL department had failed in their duties.
Eventually, the Council's team conceded that they had made a mistake, particularly in failing to serve all owners of the land a Liability Notice in a timely manner, and there was no CIL liability to pay.
This is certainly the most controversial CIL project Viable Placemaking have taken on and we are thrilled to have won the case for our client.
This project was led by Adam Place, Viable Placemaking's Director. If you would like to learn more about this scheme or the CIL implications of your development, please don't hesitate to get in touch. Our team include RICS and RTPI professionals who are able to assist with an array of economic matters in the planning process, including CIL strategies.
[1] Gardiner v Hertsmere Borough Council [2021] EWHC 1875
[2] The Community Infrastructure Regulations 2010 (as amended)
[3] The Law of Property Act 1925