Definition of construction commencement - CIL perspective? (hope I'm over-thinking this...)

[Great_scot_selfbuild]

I hope I'm over-thinking this, but having read scare stories about people commencing activity prior to CIL exemption and the inability to retrospectively get exemption, I just don't want to mess it up.

 

We have pre-commencement conditions on our approval, but to provide the necessary information in the Arboricultural Method Statement we are having to do some root investigations (specialist using air spade - all approved by the Council Tree Officer). Basically they will dig (air spade) some holes, assess the roots present and then fill them in again with the soil levels in the same order (subsoil then topsoil).

 

As far as the council is concerned, this isn't commencement as I'm establishing details to provide to them in the pre-commencement reports they have requested.

 

Is there any definition of what will be seen as commencement from a CIL perspective? would this come anywhere close (the fact they need a generator and an air spade/lance - is this seen as an 'engineering operation'?)

 

If I put the CIL paperwork in for assumption of liability and then exemption stating the date of this root investigation, then the council could challenge me by saying I haven't yet met my pre-commencement conditions (which is correct - this work will inform how we meet them).

 

I plan to sort the pre-commencement conditions and define the tree felling as the commencement date (the only real notable clearance activity involved with the site - 2 low quality trees included in the planning approval).

 

Thoughts?

 

Thanks in advance,

 

David

[Dave Jones]

submit form 7 part 1, wait and receive the nil liability notice.

 

submit form 6 commencement notice.

 

when complete submit form 7 part2

 

done.

 

our CIL was not interested in any of the low level minutia, its pureley a paperwork excersie. I'd do step2 before a single contractor stepped on site.

[G and J]

2 hours ago, Dave Jones said:

submit form 7 part 1, wait and receive the nil liability notice.

 

submit form 6 commencement notice.

 

when complete submit form 7 part2

 

done.

 

our CIL was not interested in any of the low level minutia, its pureley a paperwork excersie. I'd do step2 before a single contractor stepped on site.

I agree with that.  There appears to be no downside to telling CIL that you are starting, even if it’s long before you are starting in any real sense.   We consulted our local CIL team to ask and they were wonderfully helpful.  They sent us this extract but they also pointed out that it’s ok to tell immediately us we are starting just to make sure we’ve done it before actually starting.

 

“…commencement of the development is one of the following:

(a)any work of construction in the course of the erection of a building;

(aa)any work of demolition of a building;

(b)the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)any operation in the course of laying out or constructing a road or part of a road;

(e)any change in the use of any land which constitutes material development.

 

Some gardening and clearance works will not necessarily constitute commencement, but you can submit your commencement notice in relation to those works for the purposes of CIL.”

[Great_scot_selfbuild]

6 hours ago, Dave Jones said:

submit form 7 part 1, wait and receive the nil liability notice.

 

submit form 6 commencement notice.

 

when complete submit form 7 part2

 

done.

 

our CIL was not interested in any of the low level minutia, its pureley a paperwork excersie. I'd do step2 before a single contractor stepped on site.

Thanks @Dave Jones - appreciate this. 

[Great_scot_selfbuild]

4 hours ago, G and J said:

I agree with that.  There appears to be no downside to telling CIL that you are starting, even if it’s long before you are starting in any real sense.   We consulted our local CIL team to ask and they were wonderfully helpful.  They sent us this extract but they also pointed out that it’s ok to tell immediately us we are starting just to make sure we’ve done it before actually starting.

 

“…commencement of the development is one of the following:

(a)any work of construction in the course of the erection of a building;

(aa)any work of demolition of a building;

(b)the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)any operation in the course of laying out or constructing a road or part of a road;

(e)any change in the use of any land which constitutes material development.

 

Some gardening and clearance works will not necessarily constitute commencement, but you can submit your commencement notice in relation to those works for the purposes of CIL.”

Thanks @G and J - really helpful to see that extract and appreciate the response. 

[G and J]

1 hour ago, Great_scot_selfbuild said:

Thanks @G and J - really helpful to see that extract and appreciate the response. 

A word of caution, that’s the stuff from our local authority, but other authorities may have different interpretations.  
 

I suspect the guys at the CIL office are a bit like the guys at HMRC, in that they are used to being moaned at and despised.  But call them with a smile, and honestly and openly seek their guidance, and they turn out to be lovely and helpful people.  
 

So why not call em and make friends?

[Alan Ambrose]

I would not do the above at all. You can do quite a bit of investigation work before CIL is involved. In fact, I would not trigger CIL unless I was very sure that I was proceeding with the design exactly as approved by planning. The downside is that it fully commits you to the design and you will find it tricky to change without a big penalty - say if you have to move the footprint a little to avoid some roots.

 

Just email the CIL guys at your LPA, tell them what ground investigation you are planning and ask them to confirm that you won’t accidentally foul up your self-build exemption. Wait for the reply and then proceed. I’ve done this 3 or 4 times already.

[G and J]

4 minutes ago, Alan Ambrose said:

I would not do the above at all. You can do quite a bit of investigation work before CIL is involved. In fact, I would not trigger CIL unless I was very sure that I was proceeding with the design exactly as approved by planning. The downside is that it fully commits you to the design and you will find it tricky to change without a big penalty - say if you have to move the footprint a little to avoid some roots.

 

Just email the CIL guys at your LPA, tell them what ground investigation you are planning and ask them to confirm that you won’t accidentally foul up your self-build exemption. Wait for the reply and then proceed. I’ve done this 3 or 4 times already.

Ummm, that is unexpected, not heard of that at all.  The CIL guys are interested in the square meterage that will be created (less maybe existing and recently used square meterage) but they seem to just accept the approved plans.   You are worrying me now - where have you seen this scenario in action?

[Alan Ambrose]

Actually I’ve heard this directly from the East Suffolk CIL people and there are also a few reports here on BH too. The situation is: LPA with CIL; self-build CIL exemption triggered correctly and build started. Before much progress is made, applicant wants to change design - not a minor change or non-material amendment but something which triggers a full PP application e.g. a change of footprint. Applicant gets nailed for full CIL payment. Something to do with wanting to start a new CIL process on another planning application without completing the original CIL process. That is, the CIL status doesn’t seem to be transferable between planning applications even if it’s on the same plot. I have not read the detailed CIL law yet, but it must be in there somewhere.

Edited August 26 by Alan Ambrose

[G and J]

1 hour ago, Alan Ambrose said:

Actually I’ve heard this directly from the East Suffolk CIL people and there are also a few reports here on BH too. The situation is: LPA with CIL; self-build CIL exemption triggered correctly and build started. Before much progress is made, applicant wants to change design - not a minor change or non-material amendment but something which triggers a full PP application e.g. a change of footprint. Applicant gets nailed for full CIL payment. Something to do with wanting to start a new CIL process on another planning application without completing the original CIL process. That is, the CIL status doesn’t seem to be transferable between planning applications even if it’s on the same plot. I have not read the detailed CIL law yet, but it must be in there somewhere.

Goodness.  So the moral is…. decide what you want before you start.  
 

We are mulling over making a change to our design so methinks I’m going to call the nice peeps at CIL tomorrow for some guidance.

[Alan Ambrose]

Yeah, they have been reasonably helpful with my ongoing site-investigation stuff although slow-ish and a bit anal e.g. ‘yes you can use a digger to dig, but it can’t be anywhere near the foundations’ etc. If they give you the same story re major design changes, I expect they will, then please ask them where that’s detailed in the CIL law - I forgot to do that, just took them at their word.

Edited August 26 by Alan Ambrose

[Great_scot_selfbuild]

@G and J @Alan Ambrose

 

UPDATE:

Just managed to get a response from the CIL team - they included the following extract. In addition, having spoken to the team that I would be using to do the investigation holes, they have experienced in the past that even this preliminary work, because it involves using a powered tool (generator and air spade) then it has been considered to be a material operation. Therefore, I'm working with the CIL team to try and get the Forms 2, 7pt1 and 6 approved & accepted by tomorrow so that we can go ahead as planned.

 

Thanks for your responses - useful to just think it through out loud and share the issue.

 

The CIL regulations definition for commencement is as follows as per Regulation 7:

 

Commencement of development

7.— (1) This regulation has effect for determining when development is to be treated as commencing for

the purposes of Part 11 of PA 2008.

(2) Development is to be treated as commencing on the earliest date on which any material operation

begins to be carried out on the relevant land.

[Alan Ambrose]

Well that's interesting, I think it's wrong, but I would then check with them 'what if the investigation work turns up information which means I need to move my dwelling footprint?'

 

I think this area of the CIL law is a bit vague and untested, so different LPAs and even different staff may take different views.

 

Bear in mind that CIL is a revenue raising activity, so anything that nets income for an LPA is fair game.

[Bancroft]

On 26/08/2024 at 10:08, G and J said:

There appears to be no downside to telling CIL that you are starting, even if it’s long before you are starting in any real sense.

I did exactly this.  Emailed them in June shortly after we got PP, saying we expect to start work in September but in reality it's likely to be long after that.  They got back to me within the same day confirming no CIL responsibility so I now just have a note in my diary/project management stuff to call/email them about completion idc.

[Alan Ambrose]

I was just back-tracking through my emails to read the exact responses I got from the CIL guys at my LPA. I came across this (below) FYI. I assume that comes out of here:

 

https://www.legislation.gov.uk/uksi/2010/948/contents

 

... but I haven't checked.

 

So, your root investigation work would not be a 'material operation' according to those definitions. (e) is hilarious as it's fairly tautological.

 

Development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land.

 

“material operation” means—

(a)        any work of construction in the course of the erection of a building;

       (aa) any work of demolition of a building;

(b)        the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)        the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)        any operation in the course of laying out or constructing a road or part of a road;

(e)        any change in the use of any land which constitutes material development.

 

Clearing the land and preparatory works not included above are unlikely to constitute commencement of the development.

[Alan Ambrose]

FYI re 'moving the CIL arrangements from one planning application to another' this was the gist of the conversation with my LPA. Unfortunately, I didn't ask them which exact part of the CIL law they were getting their guidance from.

 

Q

As we already have planning granted for a single storey dwelling, we would like to make a start on the installation of services and for the driveway for access.

I imagine that we can simply signal a formal start under the original application and then ‘move the CIL arrangements’ as the new planning and/or appeal comes through.

Would that be correct? If so, what is the correct procedure for ‘moving the CIL arrangements’?

A

If your new applications were variations of the original consent, it would be possible to transfer a self build exemption across, however, as you have made new full applications this becomes somewhat more complicated. You cannot transfer a self build exemption from one full application to another. If you make a start and carry out a material operation to commence development, you could invalidate any possibility of claiming exemption on an alternative permission. Given the access arrangements are the same, you would effectively have already implemented a new permission on the day permission was granted and the CIL for it would be payable in full, immediately. I would recommend you wait to implement any permission until you have received the permission you intend to build out to avoid any potential issues down the line.

[Great_scot_selfbuild]

On 27/08/2024 at 15:41, Alan Ambrose said:

I was just back-tracking through my emails to read the exact responses I got from the CIL guys at my LPA. I came across this (below) FYI. I assume that comes out of here:

 

https://www.legislation.gov.uk/uksi/2010/948/contents

 

... but I haven't checked.

 

So, your root investigation work would not be a 'material operation' according to those definitions. (e) is hilarious as it's fairly tautological.

 

Development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land.

 

“material operation” means—

(a)        any work of construction in the course of the erection of a building;

       (aa) any work of demolition of a building;

(b)        the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)        the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)        any operation in the course of laying out or constructing a road or part of a road;

(e)        any change in the use of any land which constitutes material development.

 

Clearing the land and preparatory works not included above are unlikely to constitute commencement of the development.

Success! Thanks @Alan Ambrose I’ve used your comment to track down the links to the Town & Country Planning Act (TCPA), 1990 and had the council agree that as long as our work isn’t any of these elements - which they agree it isn’t - then we don’t need to have formally commenced. 

[Alan Ambrose]

If nothing else, it gives us a sense of how reliable LPA CIL advice is - i.e. not very reliable.

[Great_scot_selfbuild]

Just for reference if it helps anyone, here's the email content I sent to my CIL team (who were actually responsive by phone and email), they couldn't offer advice on the regulations - they are under instructions to only be able to point to the regulations, paste them verbatim but not offer a view on whether the work is in/outside them. The phone call confirmed that my interpretation was correct, but the email they would reply with could only agree that the regs I was citing were current and correct. It gave me enough to know that I was the right side of the line.

 

************ Email content ************

Dear CIL Team,

 

I’m still looking to get our Form 6 approved against tomorrows date, but I have looked further into the government regulations and their definition of ‘Material Operation’ in relation to the extract in your email below. 

 

Based on the Gov definitions (CIL / Town & Country Planning Act), the investigative holes (which will be filled back in) do not actually constitute a ‘material operation’, therefore it can be undertaken prior to the Form 6 approval (and would avoid me rescheduling this work). 

 

However, I would like a response to confirm that you agree with this. The relevant links and extract are provided here:

 

Gov CIL Regulations:

https://www.legislation.gov.uk/uksi/2010/948/contents

 

Gov definition of commencement:

https://www.legislation.gov.uk/uksi/2010/948/regulation/7

 

Commencement of development

7.—(1) This regulation has effect for determining when development is to be treated as commencing for the purposes of Part 11 of PA 2008.

(2) Development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land.

(3) Paragraph (2) is subject to the following provisions of this regulation.

(4) Development is to be treated as commencing on the day planning permission is granted for that development if planning permission had previously been granted for that development for a limited period.

(5) Development for which planning permission is—

(a)granted under section 73A of TCPA (planning permission for development already carried out); or

(b)granted or modified under section 177(1) of TCPA 1990 (grant or modification of planning permission on appeals against enforcement notices),

is to be treated as commencing on the day planning permission for that development is granted or modified (as the case may be).

(6) In this regulation “material operation” has the same meaning as in section 56(4) of TCPA 1990(1) (time when development begun).

 

Gov definition of material operation (TCPA 1990):

https://www.legislation.gov.uk/ukpga/1990/8/section/56

(4)In subsection (2) “material operation” means—

(a)any work of construction in the course of the erection of a building;

[F9(aa)any work of demolition of a building;]

(b)the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)any operation in the course of laying out or constructing a road or part of a road;

(e)any change in the use of any land which constitutes material development.

 

Many thanks,

 

*******

[Alan Ambrose]

>>> they couldn't offer advice on the regulations

 

I don’t think that’s an acceptable stance by your LPA. What if HMRC said it couldn’t advise re taxes, the police said they couldn’t advise over crime, the LPA planners couldn’t advise re planning etc? Fundamentally we expect them to have a good level of expertise in the area they work in.
 

 

[Temp]

2 hours ago, Alan Ambrose said:

What if HMRC said it couldn’t advise re taxes,

 

They do exactly that when it suits them. They generally won't give advice on any transactions you might be considering in advance, only afterwards when it might be too late.

Edited August 30 by Temp