51茶馆

1. Appeal Decision

By redacted 听听MRICS VR

an Appointed Person under the Community Infrastructure Levy Regulations 2010 (as amended)

Valuation Office Agency - DVS

Wycliffe House
Green Lane
Durham
DH1 3UW

贰-尘补颈濒:听 redacted @voa.gov.uk

---

Appeal Ref: 1837408

Address: 听redacted

Proposed Development: Demolition of existing dwelling and garage and erection of replacement detached dwelling.

Planning Permission details: Granted by redacted 听辞苍 redacted, under reference redacted.

2. Decision

I determine that the Community Infrastructure Levy (CIL) payable in this case should be 拢redacted 听(redacted).

3. Reasons

3.1 Background

1. I have considered all the submissions made by the appellant, redacted 听and the submissions made by the Collecting Authority (CA), redacted.听听

In particular, I have considered the information and opinions presented in the following documents:-

• CIL Appeal form dated redacted 听.
• Grant of Planning Permission redacted, dated redacted.
• Grant of Planning Permission redacted, dated redacted 听.
• The first CIL Liability Notice (ref: redacted) dated redacted.
• The second CIL Liability Notice (ref: redacted) dated redacted 听.
• Appellant鈥檚 Statement of Case, dated redacted.
• The CA鈥檚 Statement of Case document to VOA (redacted) but received on redacted 听.
• Appellant鈥檚 comments on the CA鈥檚 Statement of Case and Appellant鈥檚 Rebuttal Statement, dated redacted 听.

2. In recent years, the property has had a somewhat complicated planning history and the background to this appeal stems from an earlier planning application, redacted, which was granted on redacted.听 The grant of redacted 听was for a ground floor and first floor extension with accommodation in the roof to remodel the existing dwelling. 听However, I note that the grant of redacted 听was subject to enforcement action by the CA. 听The Appellant opines that the application redacted was lawfully implemented and remains extant, thereby allowing the offset of the existing gross internal area (GIA) in the CIL calculation.

4. Grounds of Appeal

1. Planning permission was granted for the development on redacted, under reference redacted.

2. On redacted, the CA issued a Liability Notice (Reference: redacted) for a sum of 拢redacted.听 This was based on a net chargeable area of redacted 听m虏 and a Charging Schedule rate of 拢redacted 听per m虏, and indexation at redacted.听

3. The Appellant requested a review of this charge within the 28 day review period, under Regulation 113 of the CIL Regulations 2010 (as amended).听 The CA responded on redacted 听, stating that it was of the view that its original decision was correct in the main; however, the CA did concede that the garage area of the dwelling should be reflected and offset (but not the main house).听 As a consequence of the CA鈥檚 decision, the CA issued a second Liability Notice, reflecting the offset of the garage area.

4. On redacted, the CA issued a second Liability Notice (Reference: redacted) for a sum of 拢redacted.听 This was based on a net chargeable area of redacted 听m虏 and a Charging Schedule rate of 拢redacted 听per m虏, and indexation at redacted.

5. On redacted, the Valuation Office Agency received a CIL Appeal made under Regulation 114 (chargeable amount) from the Appellant, contending that the CA鈥檚 calculation is incorrect and that the CIL payable should be 拢0 (zero sum).听

6. The Appellant鈥檚 appeal can be summarised to a single core point:- That the chargeable development granted under the redacted 听听permission should have received an offset of the floorspace, that was lawfully granted under redacted 听and contends that the CIL payable should be 拢0.

7. The CA disagrees, contending that the CIL payable is 拢redacted, the sum shown in the second Liability Notice (Reference: redacted).

It would appear that there is no dispute between the parties in respect of the Gross Internal Area (GIA) of the development, the Charging Rate or the applied indexation.

5. Decision

1. The dispute between the parties relates to a domestic dwelling house, which is situated in redacted.

2. At the heart of the matter is a dispute between the parties in respect of what floorspace can be off-set (in other words, the existing area floor space, which the Appellant considers is an eligible deduction, which can be off-set against the chargeable area).听 The Appellant鈥檚 case summary and the relevant CIL Regulations are as follows:-

3. The Appellant opines that the application redacted was lawfully implemented and remains extant, thereby allowing the offset of the existing, lawful, gross internal area (GIA) to be offset from the overall CIL liability.听 In support of this contention the Appellant cites the case law of Giordano and Hourhope.

4. The CIL Regulations Part 5 Chargeable Amount, Schedule 1 defines how to calculate the net chargeable area.听 This states that the 鈥渞etained parts of in-use buildings鈥� can be deducted from 鈥渢he gross internal area of the chargeable development.鈥�

5. Furthermore, Schedule 1 of the 2019 Regulations allows for the deduction of floorspace of certain existing buildings from the gross internal area of the chargeable development, to arrive at a net chargeable area upon which the CIL liability is based.听 Deductible floorspace of buildings that are to be retained includes;

a.听retained parts of 鈥榠n-use buildings鈥�, and

b.听 for other relevant buildings, retained parts where the intended use following completion of the chargeable development is a use that is able to be carried on lawfully and permanently without further planning permission in that part on the day before planning permission first permits the chargeable development.

6. 鈥淚n-use building鈥� is defined in the Regulations as a relevant building that contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development.

7. 鈥淩elevant building鈥� means a building which is situated on the 鈥渞elevant land鈥� on the day planning permission first permits the chargeable development.听 鈥淩elevant land鈥� is 鈥渢he land to which the planning permission relates鈥� or where planning permission is granted which expressly permits development to be implemented in phases, the land to which the phase relates.

8. Regulation 9(1) defines the chargeable development as the development for which planning permission is granted.

9. From the submitted evidence, it is clear to me that the subject planning consent of redacted was a retrospective planning application to regularise unauthorised works and that redacted 听is the only permission upon which this development may rely.听 I disagree with the Appellant on the relevance of the earlier application of redacted.听 The Appellant cites the Court of Appeal case of R (on the application of Giordano Ltd) v London Borough of Camden [2019] EWCA Civ 1544 and R (oao Hourhope Ltd) v Shropshire Council (2015); whilst this cited case law is relevant in that it pertains to CIL, I disagree with the Appellant that its supports an argument for the earlier application of redacted to be relevant. 听Of note, at paragraph 30, the Giordano case cites 鈥榯he equivalence of use required is between 鈥渢he intended use鈥� and 鈥渁 use that is able to be carried on lawfully and permanently without further planning permission鈥�.听听Given that there is a 鈥榝urther planning permission鈥� - in this case, redacted, which is a furtherance of redacted, the Appellant鈥檚 application of Giordano is inappropriate.

10. The Hourhope case provided guidance on 鈥榠n-use buildings鈥� in that 鈥榠n-use buildings鈥� demolished during the development or retained on completion will be determined not by whether there is available a permitted use for the building, but by the actual use of the building. 听The circumstances in this case are wholly different in comparison to Hourhope 鈥� the Hourhope case considered the lawful use of a closed public house.

11. Regulation 9(1) of the CIL Regulations 2010 states that chargeable development means 鈥渢he development for which planning permission is granted鈥�.听 The CIL liability herein under appeal, therefore relates to the development allowed by planning permission redacted 听, which is retrospective; this is clear from the description of the subject development:

Demolition of existing dwelling and garage and erection of replacement detached dwelling.听[my emphasis of text is underlined].

12. In respect of redacted, whilst I note that the Appellant 鈥榖elieves that no works beyond that which were approved took place鈥�, it is a factual matter that the Appellant applied for and was granted retrospective planning consent under redacted.

I agree with the CA鈥檚 opinion that in respect of redacted, the original house was in the most part demolished by the day planning permission first permitted the development (i.e. redacted) as evidenced by the enforcement officer鈥檚 photographs of redacted.听

In conclusion, it is clear to me that the main house had no lawful use in planning terms under Schedule 1 (b) of the 2019 Regulations and its accommodation cannot be off-set. However, it would appear that the original garage remained untouched throughout the enforcement case and remained in situ on the date that redacted was granted, thereby being a relevant in-use building with GIA capable of being offset.

13/. Having fully considered the representations made by both parties and all the evidence put forward to me, I agree with the CA that that the garage area of the dwelling should be reflected and offset (but not the main house) and agree with the CA that the net chargeable area of the development is redacted 尘虏.

14/. In conclusion, having considered all the evidence put forward to me, I therefore confirm the CIL charge of 拢redacted 听(redacted) as stated in the Liability Notice dated redacted and hereby dismiss this appeal.

听redacted听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听听

redacted 听MRICS VR

Principal Surveyor
RICS Registered Valuer
Valuation Office Agency
27 February 2024