Reported Case

The Court of Appeal has reversed the decision of the High Court on the applicability of the Community Infrastructure Levy. Duncan Lewis represented the successful appellant; Giordano Ltd.

Local authorities can impose the Community Infrastructure Levy on new developments in order to generate funds to improve and support the infrastructure, facilities and services of the local area.

In this case, the question in the appeal was whether the Community Infrastructure Levy (CIL) was payable where the company sought a minor amendment to planning permission that had been granted before the CIL was introduced. The work to complete the planned development was only in the preparatory stages with the change being to build three three-bedroom flats in an old warehouse, rather than six one-bedroom flats in the same space. It was undisputed that the original plan to build six flats could have been completed without CIL being applied, because it only applied to planning permissions approved after CIL was introduced.

The rules provide that CIL applies to the ‘net additional floor space’ that the revised plans would create; however development that could ‘lawfully and permanently be carried on, on the day before planning permission was granted’ would be disregarded.

Camden Council argued that as the development works were only in the preparatory stage, the whole development was ‘additional floor space’. They argued that to qualify for the statutory disregard, the building had to be physically capable of the new use on the relevant day.

We argued that as it was earlier planning permission that had allowed the change of use from commercial to residential, the condition that the revised plan was lawful ‘on the day before the new planning permission was granted’ was satisfied. There was no need for the building to be physically capable of the use on the relevant day, and no justification to imply one. The Court of Appeal agreed.


Representation

Public law director James Packer and solicitor Kate Newman represented in both the High Court and Court of Appeal. Tim Buley of Landmark Chambers represented the Claimant in the High Court, but took silk before the Court of Appeal hearing and is now Tim Buley QC.

For more information please contact James Packer on: 020 7275 2772 or at jamesp@duncanlewis.com



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Find full details of this case on Bailii’s website here.