Community Infrastructure Levy and the importance of serving the Commencement Notice

14 Feb 2019

Regulation 67(1) of the CIL Regulations explains that a Commencement Notice must be submitted to the Collecting Authority no later than the day before the day on which the chargeable development is to be commenced.  Failure to do this may result in the Collecting Authority imposing a surcharge equal to 20% of the chargeable amount payable or £2,500.00 whichever is the lower. 

Early last year from the appeal to The Planning Inspectorate (reference: APP/M0933/L/17/1200112) we learnt that it is very important to be able to prove that you have sent the Commencement Notice.  In that appeal a developer claimed to have sent one but could provide no proof, and the appeal against the surcharge was unsuccessful.  Sending the Commencement Notice by recorded delivery would be sensible, and perhaps even contacting the Collecting Authority prior to commencement to make sure it has been received would be prudent. 

The importance of serving the Commencement Notice and the strict interpretation of the regulations in this regard, has been further emphasised by the recent appeal to the Planning Inspector (reference: APP/C3620/L/18/1200214), where the developer did not submit a Commencement Notice prior to commencing demolition, and sought to argue that they should not have to pay a surcharge for two reasons:-

  1. That demolition of itself did not constitute development;
  1. That they had served the Demolition Notice on the Council who were also the Collecting Authority.

The appeal was unsuccessful on the first ground because demolition clearly falls within the definition of material operation and is therefore development, and on the second because although they had served a Demolition Notice, this was a notice under the building control system which was separate from the statutory regime for Community Infrastructure Levy and the Demolition Notice was not a substitute for a Commencement Notice.

A Commencement Notice was submitted, but it was sent four days after the demolition works had commenced and was therefore not valid.  While the Inspector had some sympathy with the appellants, the regulations are clear.  The lesson is to serve the Commencement Notice before commencing works and make sure you can prove you have done so. 

Simon Tennant

Robert Coyle

Partner

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