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

Under regulation 40(7)(ii) of the Community Infrastructure Levy Regulations 2010, retained parts of a relevant building may be deducted when the intended use could lawfully and permanently be carried on there, without further planning permission, on the day before the chargeable permission first permits development.

The use need not be the building’s extant lawful use, nor already be implemented or physically completed. An extant and implementable planning permission, or permitted development rights, can suffice. The question is assessed objectively at the specified date.

Giordano Ltd owned a building subject to an extant 2011 planning permission for six flats. The permission had been implemented but the residential conversion was incomplete. In 2017 Camden Council granted permission for three larger flats and issued a CIL liability notice for £547,419.09.

The council rejected Giordano’s review request, and Lang J dismissed its judicial review claim in [2018] EWHC 3417 (Admin). The appeal concerned whether regulation 40(7)(ii) applied because the same Class C3 residential use was lawfully authorised under the earlier permission, despite the absence of actual residential occupation and incomplete physical adaptation.

1. Disposition. Lindblom LJ delivered the judgment, with which Sir Ernest Ryder and Hickinbottom LJ agreed. The appeal was allowed. The council’s decision was based on a misunderstanding of regulation 40(7)(ii), and the matter was to return to the council for redetermination.
2. Statutory structure. Regulation 40(7) contains two distinct concepts. Regulation 40(7)(i) concerns retained parts of an in-use building, as defined in regulation 40(11). Regulation 40(7)(ii) concerns retained parts of other relevant buildings. That second limb does not impose a minimum period of prior lawful use.
3. Meaning of regulation 40(7)(ii). The relevant date is the day before planning permission first permits the chargeable development. The intended use is the use authorised by the new permission. The required equivalence is with a use which, on that date, could lawfully and permanently be carried on in the retained part without further planning permission, including any necessary physical works. The word able does not require physical suitability, actual occupation, completed adaptation, or an existing extant lawful use. An extant and implementable planning permission, or permitted development rights, is sufficient. This construction was supported by the principle discussed in Secretary of State for Transport, Local Government and the Regions v Waltham Forest London Borough Council [2002] EWCA Civ 330.
4. Application. The planning position was to be assessed objectively from the relevant planning history. No speculative future date for completion, or future intention of the landowner, was relevant. The earlier permission authorised the same residential Class C3 use and remained capable of implementation. The deduction therefore applied. The Explanatory Note and Planning Practice Guidance were consistent with this interpretation, although neither was needed to construe the regulation. The reasoning in Gravesham Borough Council v Secretary of State for the Environment [1984] P. & C.R. 142 illustrated why requiring prior completion of kitchens, lavatories and bathrooms would impose an artificial and purposeless condition.

1. Court of Appeal (Civil Division): allowed the appeal from Lang J’s decision; [2019] EWCA Civ 1544.
2. Administrative Court, Planning Court: Lang J dismissed Giordano’s judicial review claim concerning the CIL liability notice; [2018] EWHC 3417 (Admin).