CIL - recent cases illustrating the importance of submitting a Commencement Notice

For those of you who have come (or are coming) to this year’s planning update I have been emphasising the importance of having CIL paperwork in order, but particularly taking stock before commencing development by undertaking a material operation (per s56 of the Town and Country Planning Act).

Further, I have demonstrated why submitting a Commencement Notice (CN), and ensuring it is received, in good time before “putting spades in ground” is crucial.

This is best illustrated by two recent cases* decided in September 2018.

In the first*, the appellant submitted a Commencement Notice (CN) on 3 February 2018 stating a commencement date of 1 November 2017. This is notwithstanding that the CN is required to be submitted at least one day before works begin on the chargeable development (per Regulation 67(1) of the Community Infrastructure Levy Regulations 2010). So the CN was clearly late (and by several months).

The Appellant contended that the CN was submitted late as they had not received the blank notice from the collecting authority, following a request. This held no water with the Inspector.

The Inspector reiterated it was the Appellant’s responsibility to submit the necessary CN and, if they had not received the forms, the onus was on them to contact the collecting authority to chase them up. As the CN was not submitted before works began on the chargeable development, regulation 67(1) was breached and the surcharge was payable. Appeal dismissed.

In the second*, the alleged breaches were the failure to assume liability and failure to submit a CN on time with the appeal concerning the imposition of surcharges. The Appellants had assumed that their architect would submit the relevant notices, he did not.

Regulation 80 explains that a collecting authority may impose a surcharge of £50 on each person liable to pay CIL if the development has commenced and nobody has assumed liability. Regulation 83 explains that where a chargeable development is commenced before the collecting authority has received a valid CN, a surcharge equal to 20% of the chargeable amount payable or £2,500 - whichever is the lower amount – may be imposed.

The Inspector could only consider the appeal on the facts and found it was an "inescapable" fact that the relevant forms were not submitted to the charging authority before works commenced on the chargeable development. Again, the appeal was dismissed and the surcharges upheld.

So the above really do illustrate my point about “pausing” before commencing development to ensure that all CIL forms have been correctly submitted and received by the authority, before starting works. The importance of submitting a Commencement Notice cannot be understated in the present climate because failure to do so does “crystallise” any default and will almost certainly lead to financial detriment.

For more information please contact Holmes & Hills Planning Law solicitors on 01376 320456 (Braintree).

* see : https://www.holmes-hills.co.uk/wp-content/uploads/attachments/1200174_CIL_Redacted.pdf and https://www.holmes-hills.co.uk/wp-content/uploads/attachments/1200177_Railton_CIL_Redacted.pdf