Nathan Gardiner v Hertsmere Borough Council & Anor.

The self-build housing exemption from Community Infrastructure Levy is unavailable where the development is first authorised by retrospective planning permission under section 73A. A person can assume liability only for a chargeable development, which requires planning permission already to have been granted. The assumption must also precede commencement.

Under Community Infrastructure Levy Regulations 2010, a section 73A permission and deemed commencement occur simultaneously. There is therefore no interval in which liability can be effectively assumed. Further, any exemption claim would lapse if commencement occurred before the collecting authority notified its decision. The prescribed procedure is mandatory.

The appellant carried out works exceeding an earlier planning permission for an extension to his bungalow. He sought and obtained retrospective planning permission under section 73A of the Town and Country Planning Act 1990 for demolition and construction of a replacement dwelling.

Before that permission was granted, he submitted an assumption of liability notice and claimed the self-build housing exemption from Community Infrastructure Levy. The council rejected the exemption and issued liability and demand notices for £118,227.62. Thornton J dismissed his judicial-review claim: [2021] EWHC 1875 (Admin). The central issue was whether the exemption was available where the relevant development was retrospectively permitted under section 73A.

Decision

1. The Court of Appeal unanimously dismissed the appeal. The council had lawfully refused the self-build housing exemption and the judge was right to uphold its liability and demand notices.

2. The statutory scheme requires an effective assumption of liability before a valid self-build exemption claim can be made. Liability under regulation 31 can be assumed only in respect of a chargeable development. Regulation 9(1) defines that as development for which planning permission is granted. It does not include a proposal which may or may not receive permission.

3. For ordinary prospective permission, there is an interval between grant and commencement. That interval permits the claimant to assume liability and obtain a decision on an exemption claim. For section 73A permission, regulation 7(5) treats development as commencing on the day permission is granted. The grant and commencement are simultaneous. Regulation 31 consequently leaves no period in which liability can be effectively assumed before commencement.

4. The lapse provision independently produced the same result. Under regulation 54B(3), a claim lapses if the chargeable development commences before the collecting authority has notified its decision. A purported grant after section 73A permission would concern a lapsed claim. A purported grant before permission would not concern a chargeable development.

5. Section 208 of the Planning Act 2008 did not create a separate route for assuming liability before permission. A notice submitted before permission may be procedurally valid and acknowledged, but it has no substantive effect until there is a chargeable development. The court also considered that the expression “intends to build” in regulation 54B(2)(a)(i) supported, though was not necessary to, this conclusion.

The council’s additional contention concerning the timeliness of the claim was left moot.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal and upheld the refusal of the self-build exemption: [2022] EWCA Civ 1162.
• High Court, Planning Court: Thornton J dismissed the claim for judicial review challenging the council’s CIL decisions: [2021] EWHC 1875 (Admin).