Orbital Shopping Park Swindon Ltd, R (on the application of) v Swindon Borough Council & Anor

For Community Infrastructure Levy purposes, separate planning permissions must be interpreted according to their own terms and cannot be treated as one permission merely because the works are functionally connected or were deliberately separated. Where internal works require planning permission only because of section 55(2A) of the Town and Country Planning Act 1990, they fall within the exemption in regulation 6(1)(c) of the Community Infrastructure Levy Regulations 2010. A charging authority has no administrative discretion to impose CIL contrary to that statutory scheme. Purposive interpretation requires close analysis of the particular statutory provision and cannot justify taxation where Parliament has not clearly imposed it.

The claimant challenged a CIL Liability Notice and Demand Notice issued by Swindon Borough Council concerning works to a retail unit. One planning permission authorised an enlarged internal mezzanine floor. A separate permission authorised external alterations, which created no additional floor space. The permissions were applied for and implemented together, and the Council treated them as a single development in order to impose CIL. The central issue was whether regulation 6(1)(c) of the Community Infrastructure Levy Regulations 2010 exempted the mezzanine works and whether the two permissions could lawfully be read together.

1. Claim allowed. The Council acted unlawfully in issuing the Liability Notice and Demand Notice by treating two separate planning permissions as one development.
2. Under section 55(2)(a)(i) of the Town and Country Planning Act 1990, internal works ordinarily do not constitute development. Article 44 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires permission for qualifying retail mezzanine works exceeding 200 square metres. Regulation 6(1)(c) of the Community Infrastructure Levy Regulations 2010 excludes works requiring permission only because of section 55(2A) from development for CIL liability. The mezzanine permission therefore was not chargeable development.
3. Planning permissions must ordinarily be interpreted within their four corners and on their face. The two permissions were legally separate, independently implementable and separately recorded on the planning register. Neither the statutory scheme nor planning law permitted the Council to combine them because they were connected in practice.
4. The CIL Regulations confer no discretion to treat separate permissions as one. The 2012 amendments concerning section 73 permissions reinforced certainty and payment of CIL once only. The 2011 explanatory memorandum confirmed equal treatment for internal-only development.
5. Purposive construction did not alter the result. The tax authorities required close analysis of the particular statutory provision. The environmental-impact authorities, including R (Burridge) v Breckland District Council, concerned a different statutory purpose and were distinguishable. The constitutional principle stated in Vestey v Inland Revenue Commissioners supplied a complete answer: taxation must be imposed by clear statutory language, not administrative judgment.

First-instance judicial review claim. No prior appellate decision is stated in the judgment.