Nathan Gardiner v Hertsmere Borough Council & Anor.

The Court of Appeal dismissed the appeal and upheld the judge below. The primary legal issue was the interpretation of the Community Infrastructure Levy Regulations 2010 (as amended), in particular the self-build housing exemption in regulations 54A and 54B, in circumstances where planning permission was granted retrospectively under section 73A of the Town and Country Planning Act 1990. The court held that the statutory scheme requires a chargeable development to be a development for which planning permission has been granted (regulation 9(1)), that an effective assumption of liability under regulation 31 can only crystallise in respect of a chargeable development, and that regulation 7(5) treats development authorised by section 73A as commencing on the day permission is granted. Because that treatment removes the temporal gap necessary for a valid assumption of liability and for a collecting authority to determine a claim under regulation 54B, the self-build exemption is not available for development first authorised by a retrospective section 73A permission. The court also relied on the lapse provision in regulation 54B(3) and the forward-looking wording of regulation 54B(2)(a)(i) as reinforcing that conclusion.

Background and parties: The appellant, Mr Nathan Gardiner, carried out works to replace and extend a chalet bungalow. After the works exceeded an earlier permission he applied under section 73A for partly retrospective planning permission. He sought the self-build housing exemption from Community Infrastructure Levy (CIL). Hertsmere Borough Council, as collecting authority, refused the claim and issued a liability and demand notice for CIL. Thornton J dismissed Mr Gardiner’s judicial review challenge ([2021] EWHC 1875 (Admin)) and the appellant appealed.

Nature of the claim: A challenge to the council’s refusal to grant the self-build housing exemption (regulations 54A and 54B of the CIL Regulations) and the council’s issue of CIL liability and demand notices following a retrospective grant of planning permission under section 73A.

Procedure and appellate path: Appeal to the Court of Appeal with permission granted by Lord Justice Bean. The Secretary of State was joined to assist. The Court of Appeal handed down judgment on 16 August 2022.

Issues framed:

• Whether the self-build housing exemption (regs 54A and 54B) can be claimed where planning permission is granted retrospectively under section 73A.
• Whether, having submitted an assumption of liability form before permission was granted, a claimant can be treated as having effectively assumed liability so as to satisfy regulation 54B(2)(a)(ii).
• Whether the lapse provision in regulation 54B(3) defeats a claim when a section 73A permission is granted.

Court’s reasoning: The court analysed the statutory scheme. Regulation 9(1) defines a chargeable development as the development for which planning permission is granted, signalling that planning permission must in fact exist. Regulation 31 permits assumption of liability in respect of a chargeable development and identifies the procedural form requirements; a submitted form may be received prior to grant but an effective assumption of liability in substance only arises in respect of an existing chargeable development. Regulation 7(5) treats development authorised by section 73A as commencing on the day permission is granted; consequently there is no interval between grant and commencement for retrospective permissions. Because an effective assumption of liability must occur after planning permission exists and before commencement, the combination of regulation 7(5) and regulation 31 removes the necessary temporal gap for retrospective permissions and so precludes a valid claim under regulation 54B. The lapse rule in regulation 54B(3) compounds this result because a claim which is not determined before deemed commencement lapses. The court noted policy considerations supporting the outcome (discouraging unauthorised development) but rested its conclusion on statutory construction.

Subsidiary findings and context: The court observed that the CIL regime is a self-contained statutory scheme, referred to earlier guidance and consultation documents (2009 consultation, 2011 information note, Planning Practice Guidance) and considered later amendment regulations (2014, 2019) which did not extend the exemption to section 73A permissions. The respondent’s additional contention that the claimant had not been deprived of a fair opportunity to have the claim determined in time was left moot.

The appeal is dismissed. The Court of Appeal agreed with the judge below that the CIL Regulations, read as a whole, mean the self-build housing exemption in regulations 54A and 54B is not available where the development is first authorised by retrospective planning permission under section 73A of the Town and Country Planning Act 1990. The rationale was that regulation 7(5) causes such development to be treated as commencing on the date permission is granted, eliminating the temporal gap required by regulation 31 for an effective assumption of liability and by regulation 54B for a claim to be valid and determined before commencement; additionally regulation 54B(3) causes an undetermined claim to lapse on deemed commencement and the forward-looking wording of regulation 54B(2)(a)(i) supports that interpretation.

Appeal from the High Court (Queen's Bench Division, Planning Court) – judgment of Mrs Justice Thornton [2021] EWHC 1875 (Admin). Permission to appeal granted by Lord Justice Bean; decision of the Court of Appeal delivered 16 August 2022 ([2022] EWCA Civ 1162).