CIL Quashed for Council’s Failure to Serve Timely CIL Liability Notice

In a recent planning appeal brought against the surcharges imposed by the City of London (reference: APP/K5030/L/23/3324906), the Planning Inspector stated that the Council had failed to served a timely Community Infrastructure Levy (CIL) Liability notice.

The CIL is a planning charge levied by local authorities in England and Wales on new developments to fund infrastructure projects in the area and many Councils are reliant on the charge. This appeal raises concerns about the Council’s adherence to statutory requirements but also impacts the developers’ ability to effectively plan and budget their projects.

The CIL Regulations 2010 (as amended) stipulate that under Regulation 65(1) the Council must issue a Liability Notice as soon as practicable after the day on which planning permission first permits development. In this case the planning permission was granted on 9th August 2022 but, a Liability Notice was not served until the 5th April 2023 (8 months later!). The Inspector concluded while ‘as soon as practicable’ is open to interpretation, eight months later could not be ‘reasonably be interpreted’ as meeting the requirement.

This delay highlights that CIL charge process should be correctly followed but, crucially, developers are able to challenge the imposition of a CIL charge.

Wilkes have been dealing with CIL challenges and, recently, were successful in arguing that CIL was not payable by the Developer. The Council had argued that the Developer had not implemented their planning permission, which was granted prior to the Council’s CIL charging schedule being in force and, therefore, the Council unreasonably requested that the Developer would make a new application so that Council could obtain the CIL money. The Developer made another application to the Council and, the Council granted a new permission meaning that CIL became payable. Wilkes, acting for the Developer, stated that the original planning permission had been correctly implemented and that the Developer should not have needed to make a new application (and so, the new permission should fall away) and therefore, the Developer was not liable the CIL charges.

If you need assistance with CIL liability and charges, please do not hesitate to get in touch with Leenamari Aantaa-Collier ([email protected]) or Alexandra Hastings-Smith ([email protected]).

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