Mon, 21 Jan 2019
The High Court last week quashed a decision by a Planning Inspector involving an important case considering the Regulations on the Community Infrastructure Levy ("CIL Regulations”). An Interested Party obtained planning permission from Shropshire Council, the Claimant, to build a detached house with triple garage at Ellsemere Shropshire. The CIL liability was assessed at 36,861.43, subject to the interested party’s self-build exemption.
In order to benefit from the self-build exemption, pursuant to the CIL Regulations, the Interested Party needed to complete a commencement notice form, prior to starting to build. The Council then needed to determine the valid commencement date, pursuant to Regulation 67 of the CIL Regulations. In failing to adhere to the regulations, the Council was forced to determine the deemed date of commencement – which was found to be a month later.
Appealing the matter before an Inspector, the Interested Party contended that he had sent an email which served as a valid commencement notice. In the appeal decision, accepting this proposition, it was concluded that the date of commencement was, in fact, that which was contended by the Interested Party, and not as determined by the Council. The appeal succeeded. The Council challenged the Inspector’s conclusions and findings, arguing that the Inspector was wrong to accept this argument; notwithstanding the IP having initially argued that there was no valid commencement at all, an argument rejected by the Inspector.
The Secretary of State conceded to judgment but the Interested Party chose to defend the permission.
In overturning the Inspector’s decision, Mr C. M. G. Ockelton, Sitting as a judge of the High Court, had the following to say;
"In my judgment…he [the Inspector] should have concluded that the email was incapable of being a commencement notice, because, as it failed to comply with the requirements imposed by reg 57, it was not ‘submitted under reg 67”....For reasons I have given I agree with the Council that the Inspector erred in his understanding of reg 67; it was indeed plainly absurd to regard the email as a commencement notice within the meaning of the Regulations; or at any rate substantial reasons would need to be given for taking that view despite the terms of the Regulations as a whole. It follows that the Inspector’s conclusion that the s 117 appeal fell to be allowed because the claimed breach (commencement without a commencement notice) did not occur, cannot stand.”
On the argument put forward by the Interested Party, namely that the Council ought to have done more to bring to his attention the requirements of the Regulations, which was also used by the Inspector to support his own analysis, the judge gave short shrift to it;
"The argument based on the Inspector’s view that the Council should have told him (again) that he needed to submit a commencement notice is without merit: the Inspector was simply wrong about that. No system of administration could survive a duty imposed on a recipient subjects that he might want to send. The fact that the penalties are discretionary does not mean that the imposition of CIL itself is discretionary: it is not. The Council seems to have behaved as sympathetically as they could, imposing a minimum interest charge; and maintaining the imposition of the surcharge, in the absence of which Mr Jones would have no right of appeal. His difficulties have been caused entirely by his own acts and I see no good reason to relieve him from the consequences at the expense of the ratepayers of Shropshire.”
The Interested Party’s application for permission to appeal was refused.
View the full judgement here.