Question about site where current PP is not subject to CIL

[Omnibuswoman]

We have just completed on the purchase of our plot ? which has detailed PP dating back to early 2018. This was prior to the CIL, and in response to a written enquiry the council have told us that provided what we build is no larger than the building that has PP, and provided we are only making a minor amendment to the PP, the lack of CIL will continue to apply (it is not CIL exempt so much as CIL simply did not exist at the time of this PP). 

 

We need to clear the land of arsenic (one of the PP conditions) and would like to commence that work straight away, but we have not yet submitted a minor variation application. I'm concerned that clearing the arsenic might constitute commencement of work, although as it is relation to the existing PP this should not cause us to become liable for CIL. I use the word should advisedly!

 

Any advice?

 

Cheers

M

[newhome]

CIL does appear to be a bit of a trap TBH. Are you saying that you want to make a minor amendment to the existing PP but haven’t done so yet, but also want to start clearing the arsenic before that amendment is approved? TBH that question is one you would need to put to the council as some of them do seem to be a law unto themselves with CIL. And get the response in writing. Some councils are counting work as having started as soon as a spade is put in the ground. Good money stream for them! 
 

Here is a link that shows you should only be liable for any increase in CIL but it doesn’t help with the question around being able to request an exemption if work is deemed to have started. 
 

https://www.michelmores.com/news-views/news/considering-community-infrastructure-levy-cil

 

[Omnibuswoman]

Thanks Newhome. I have emailed the council and received a very speedy written reply clarifying that as the arsenic clearance is under the existing PP, it would not count against us if we were to make a full planning application at a later date. But yes, you're right, we are hoping to get through an application as a minor amendment so as not to trigger CIL at all, and to make the process as quick and painless as possible ?

[Omnibuswoman]

The local authority also explained that we need to keep our amendment to an equal or lesser size than the current consent, as an increase in size would trigger the CIL - I can see this rule set out in the article you kindly attached.

[bassanclan]

As a self builder you would apply for exemption from CIL anyway before starting the build, so don't let that be a reason to keep to an inherited design etc.

[newhome]

1 hour ago, bassanclan said:

As a self builder you would apply for exemption from CIL anyway before starting the build, so don't let that be a reason to keep to an inherited design etc.

You can’t apply for exemption from a CIL that doesn’t exist but may be prevented from applying for an exemption if you had started the development and a CIL was imposed via an amendment to the PP. It’s a grey area I think. 

[Omnibuswoman]

40 minutes ago, newhome said:

You can’t apply for exemption from a CIL that doesn’t exist but may be prevented from applying for an exemption if you had started the development and a CIL was imposed via an amendment to the PP. It’s a grey area I think. 

 

Yes, that's the murky water I was paddling in. It seems that my local authority are happy to clarify that we would not be penalised for work done to comply with planning permission where the CIL does not apply, even if we later need to apply for full planning permission and need to submit an application to waive the CIL.

[newhome]

15 hours ago, Omnibuswoman said:

 

Yes, that's the murky water I was paddling in. It seems that my local authority are happy to clarify that we would not be penalised for work done to comply with planning permission where the CIL does not apply, even if we later need to apply for full planning permission and need to submit an application to waive the CIL.

That’s good news. The other grey area is where people have applied for and been granted an exemption and started work but then later decide to sell their plot to another self builder before anything much has begun. It would appear that the original owner is liable for the full CIL as they haven’t completed the process and lived in the property for 3 years and CIL exemptions are not transferable. And the new owner can’t apply for an exemption as work has commenced. I would hope that councils are being pragmatic about that but haven’t seen any evidence yet. 
 

 

[Omnibuswoman]

That sounds like an absolute nightmare to be stuck with. I wonder if anyone has successfully sought judicial review of a harsh decision such as this. The law requires authorities to make decisions that are fair, and not perverse. 

[Temp]

How about this example.. £39,000 plus legal costs for sending email instead of the commencement form..

 

https://www.burges-salmon.com/news-and-insight/legal-updates/failure-to-serve-a-cil-notice-recent-lessons-learned-from-the-high-court/

 

Quote

Mr Jones was exempt from CIL under the self-building exemption. Although, in order for this to continue to apply, a commencement notice (under regulation 67) had to be issued to the council.

The works were about to commence and Mr Jones sent an email to that effect to the council as required under the s.106 agreement. The council acknowledged receipt of the email. Mr Jones did not, however, serve the commencement notice required for the CIL exemption.

As a result, the council issued a demand notice requiring immediate payment of the CIL charge (£39,891.43) on the basis that the development had commenced without service of a commencement notice. This sum represented the CIL charge plus a surcharge of £2,500 for 'invalid commencement'.

The council refused to accept the email as a commencement notice in spite of Mr Jones’ apologetic explanation. 
 

 

 

He went to appeal and lost..

 

Quote

In addition to the circa £40,000 incurred from failing to provide the commencement notice, Mr Jones may also have to pay the council's legal costs, making for a costly oversight in total.

 

 

 

 

 

Edited June 3, 2020 by Temp

[newhome]

3 minutes ago, Temp said:

He went to appeal and lost..

 

Not surprised but it's just so wrong. 

[pepelepeu]

Yes we have just received our CIL exemption notice from Shropshire by very carefully dotting the I s etc. It puts you under pressure that you don't need!

[Temp]

I think one of the form's has a schedule of everything you need to do to claim and keep the exemption. You aren't 100% safe until three years after completion!

 

There was a case where a couple claimed the exemption and the husband died before the house was completed. Wife finished the house but couldn't face living there. Council pointed out she had to live there for three years or the CIL became payable.

 

 

[pepelepeu]

Ok thanks Temp, I didn't realise that.

[Temp]

Ok just to be sure I believe the full process is..

 

1) Assume liability (Forms 2, 3, or 4)

2) Apply for exemption (Form 7, Part 1)

3) Notify them of commencement date BEFORE doing any work on site (Form 6).

4) After completion but within 6 months send Form 7, Part 2.

5) Live there 3 years.

 

Would be wise to send any forms by recorded delivery and/or ask for written confirmation of receipt because one lost form either in the post or in their office could spell disaster. Best not leave any until the last moment.

 

No responsibility accepted if I've got any of that wrong! 

Edited June 28, 2020 by Temp