Giordano Ltd, R (On the Application Of) v London Borough of Camden

For the deduction under regulation 40(7)(ii) of the Community Infrastructure Levy Regulations 2010, the relevant present and intended uses must match on the day before planning permission first permits the chargeable development. A potential future use is insufficient. Where authorised residential use has not yet been established and the retained floorspace is only a shell incapable of residential occupation, the floorspace cannot be treated as lawfully and permanently usable without further planning permission. The statutory deduction was therefore unavailable.

The claimant sought judicial review of the Council’s decision confirming a community infrastructure levy liability of £547,419.09 for permission to convert a building into three flats. An earlier permission had authorised six flats and had been implemented, but the conversion works remained incomplete. The claimant argued that the earlier residential permission meant the retained floorspace satisfied regulation 40(7)(ii), even though residential use had not yet been established. The issue was whether the statutory deduction depended on a potential future use or on a use capable of being lawfully and permanently carried on at the relevant date.

1. The claim was dismissed. The Council’s decision was lawful.
2. Regulation 40(7)(ii) required its conditions to be satisfied on 21 June 2017, the day before the 2017 permission first permitted the chargeable development.
3. Although the earlier permission had been implemented when works commenced, the change from office and warehouse use to residential use had not occurred. The relevant floors were a shell without facilities and were incapable of residential use. By analogy with Gravesham BC v Secretary of State for the Environment (1984) P & CR 142, they could not be treated as a dwelling or as residentially usable floorspace.
4. The phrase “able to be carried on lawfully and permanently without further planning permission” required the existing use and the intended completed use to match at the relevant date. The possibility that residential use might be established later by completing the six flats did not satisfy the regulation.
5. The reasoning in Secretary of State for Transport, Local Government and the Regions v Waltham Forest LBC [2002] EWCA Civ 330, concerning the planning-law meaning of “lawful” and comparison between present and proposed uses, supported that interpretation despite the different statutory context.
6. The Planning Practice Guidance and the Explanatory Note were consistent with the statutory construction, but the precise wording of regulation 40(7)(ii) governed. No deduction was available.