The first official judgment on a phased planning permission for the purpose of Community Infrastructure Levy (CIL) has been handed down by the High Court in the case of Oval Estates (St Peter’s) LTD v Bath & North East Somerset Council [0] EWHC 457 (Admin; [0] PLSCS 36.

The 2010 Regulations define a “phased planning permission” as “a planning permission which expressly provides for a development to be carried out in phases”.

The facts

Oval applied for an outline planning permission that did not make any reference to phasing and this was granted in March 2016. Phasing was referred to in relation to the affordable housing scheme pursuant to the s.106 agreement and the reserved matters approval, granted in April 2017 contained a proposed phasing plan. Then, in February 2019, a section 96A decision (non-material amendment) was granted which added a revised phasing plan to the outline planning permission which differed to the original plan.

In accordance with the CIL Regulations, Oval submitted an assumption of liability form in April 2017 which sparked a lengthy argument about the planning permission and if it was considered to be ‘phased’. Oval based their argument on the phasing plan in the reserved matters application and the section 106 agreement’s reference to the phasing of the affordable housing units.

It should be noted that notice of commencement of the chargeable development and actual commencement took place around 18 months later in October 2018 (which was approximately 4 months before the approval of the non-material amendment (section 96a decision)).

The judgment

The Court, decided that liability of CIL arises upon actual commencement of the chargeable development (Regulation 31 of the 2010 Regulations). Oval could not rely on their phasing plan as the non-material amendment (s.96A decision) was granted 4 months after commencement of the chargeable development. This reaffirms that any steps taken to alter the planning permission (re phasing) after the fact, in this case the non-material amendments, cannot alter the position once development has started.

In conclusion

This is a key decision which could affect many developers and registered providers. Having to pay CIL in one payment rather than spread across different phases could have a big financial impact and so will want to be avoided The key thing to note is that CIL liability is triggered on the date the development is commenced and will be payable for the whole of the chargeable development unless the planning permission expressly states the development is to be implemented in phases. 

How can Capsticks help?

Our housing and regeneration team, one of the largest in the country, advises on all types of development transactions from forward funded schemes, section 106 developments and stock rationalisations to plot sales and general asset management work. We are experts on all aspects of planning law including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and all general planning law matters.

If you have any queries around what's been discussed in this article, and the impact on your organisation, please speak to Suzanne Smith or any of your contacts at Capsticks to find out more about how we can help.