Planning Law Solicitors providing Community Infrastructure Levy (CIL) legal advice across Essex & Suffolk.
The Community Infrastructure Levy Regulations 2010 (the CIL Regulations) enable a local planning authority, who have a charging schedule in place, to render a charge on a new development. That charge is designed to help fund local and subregional infrastructure and is known as a CIL charge.
Before submitting a planning application, you should check if the relevant local planning authority has a CIL charging schedule in place so that you can plan ahead in terms of any potential CIL liability owed.
A chargeable development is development for which planning permission is granted by the local planning authority.
However, CIL can only be levied against “buildings” and so, there is often debate about what constitutes a “building” for CIL purposes. This is compounded by the fact that there is no statutory definition for the term "building" within the CIL Regulations and the wide definition of "building" at section 336(1) of the Town and Country Planning Act 1990 (the TCPA), which includes any "structure or erection", is explicitly excluded from the CIL Regulations.
Instead, we have to consider (among other things) the dictionary definition of a "building" and the three-part test of assessing size, permanence and physical attachment to the ground from the Skerritts of Nottingham case.
The High Court in R (London Borough of Newham) v Commissioners for His Majesty's Revenue and Customs confirmed that the mooring of a hotel on a floating platform did not constitute a building and so no CIL was payable. The result being the confirmation that, even though a vessel may be adapted into a structure which has the characteristics of a building, a vessel is not a building. In the London Borough of Newham case, the floating accommodation platform that had been fitted out for use as a hotel could not be described as a "permanent fixed thing built for accommodation" and so did not constitute a “building” within the meaning of the CIL Regulations.
We can also turn to a number of PINs appeal decisions that assist in understanding other scenarios where development may not constitute a “building” to include (to name a few):-
The CIL Regulations also confirm that buildings into which people do not normally go, and buildings into which people go only intermittently and then only for the purpose of inspecting or maintaining fixed plant or machinery, are excluded from the definition of development and are not chargeable development or “buildings”.
CIL liability does not arise in respect of a chargeable development if the gross internal area of new development is less than 100 square metres.
There is a provision within the CIL regulations whereby a CIL Charge can be offset if there is existing floorspace that has been in lawful continuous use for at least 6 months within the 36-month period prior to the date that development is permitted, reducing the total CIL liability owed in turn.
For example, if a planning permission was granted on the 30 October 2025, then the relevant 36-month period would be from the 30 October 2022 to the 30 October 2025. If the existing building or floorspace was a residential dwelling, then for 6 months within that period the existing floorspace must have been in continuous residential use. Or alternatively, if the existing building was a barn with an established agricultural use, then for 6 months within that 36-month period preceding the grant of permission that building and existing floorspace must have been in continuous agricultural use.
Sometimes, the local planning authority will require evidence as to any lawful existing use before they will consider any reduction in the CIL liability owed. For example, if the existing building was a residential dwelling, you could provide utility bills, Council Tax statements, dated photographs showing the use as a dwelling or tenancy agreements (if the property is rented).
When a planning application is submitted in a local authority that has a CIL charging schedule in force, then a CIL “Form 1: CIL Additional Information” form should be submitted with your application documents. In our experience, and to allow for an overall smoother CIL process, we have found that submitting evidence in respect of any existing floorspace at the planning application stage, is also worthwhile to save debate with the local planning authority further down the line.
Once planning permission has been granted in, and prior to commencing the relevant chargeable development, someone must assume liability for the payment of CIL. This is usually the landowner, or the developer. Assuming liability is done by way of submission of CIL “Form 2: Assumption of Liability” form to the local planning authority.
It is usually upon receipt of Form 2 that the Council will issue a Liability Notice setting out the sum of CIL owed for the chargeable development, if not done so already.
The CIL Regulations also make provision for charging authorities to grant exemptions from the CIL levy. Depending on the circumstances, the following forms of relief or exemptions may be available:-
The local planning authority will not automatically apply an exemption or relief – it is the applicant’s responsibility to submit an application in this respect. Any claim for relief must be submitted to the local planning authority before commencement of the chargeable development. They cannot be applied for retrospectively.
By way of an example, you are a homeowner who has applied for a residential extension to your sole or main residence, it is your responsibility once permission has been granted to apply to the local planning authority for the relevant exemption prior to commencing the chargeable development and there are prescribed forms for this exercise. For example, the relevant form for a residential extension exemption is CIL “Form 9: Residential Extension Exemption Claim Form”, and an applicant will have already needed to have submitted Form 2 and assumed the liability to pay the CIL when submitting Form 9.
Upon receipt of valid exemption or relief application forms, the local planning authority must grant the exemption and notify the claimant in writing of the exemption or amount of relief granted (as the case may be). If the local planning authority have already issued a Liability Notice, then they will re-issue it to reflect the new CIL figure.
When you are ready to commence the planning permission, you must submit a CIL “Form 6: Commencement Notice” form to the local planning authority at least one day before commencement of the chargeable development.
The CIL Regulations provide that commencement of development is taken to be begun on the earliest date on which a material operation is carried out, and a material operation can include any works of construction, demolition, digging foundations, laying out or constructing a road and a material change in the use of the land.
If you commence the development before submitting a Form 6 Commencement Notice to the local planning authority, any exemption or relief already granted will be lost, as will any opportunity to apply for an exemption or relief if not already done so, and the local planning authority will issue a Demand Notice requiring that the CIL liability owed is paid immediately.
If you are unhappy with the amount of CIL liability owed, or believe that the local planning authority have calculated the liability incorrectly then there are 6 types of CIL Appeals that can be made upon receipt of a Liability Notice:-
The different appeals are subject to different time limitations and procedural requirements. For example, a Regulation 114 appeal must be submitted within 60 days beginning with the day on which the Council issued the Liability Notice and the statutory procedure requires that before a Regulation 114 appeal can be submitted, a person must first as the Council to Review the charge under Regulation 113 of the CIL Regulations. A Review Request under Regulation 113 must be submitted within 28 days from the date of the Liability Notice. The Council then have 14 days to respond to this Review request. Thereafter, a person can proceed with a Regulation 114 Appeal if they disagree with the Council’s Review decision or if the Council do not issue a decision within the 14-day time limit.
If a Demand Notice has been received from the local planning authority there are two available appeals:-
There are very limited circumstances in which either of these two appeals can be made.
The CIL regime is very technical, and there are a number of procedural requirements to contend with. Our Planning Law specialists are able to provide assistance pre-application, during the life of an application, post application or at an appeal stage in respect of:-
If you require advice or assistance in respect of any of the above CIL matters, or any other CIL query, please do not hesitate to get in touch. We provide specialist legal support across Essex and Suffolk, with offices in Colchester, Witham, Braintree, Sudbury, Halstead, Coggeshall, and Tiptree.
Client Feedback
“I have been consistently impressed with Millie Cook since I first approached her in September 2024 regarding an issue related to CIL liability. She has extensive knowledge of the subject, which she is able to impart in a very clear, concise and easy to understand way (both in written advice, and when speaking on the phone). As well as giving clear legal advice, she helps in a very practical manner, offering solutions rather than problems. With the benefit of her clear advice, we were able to reapply for planning in such a way that a CIL payment was no longer required. She is easy to reach, always returns calls promptly, is charming and very helpful. She always gives a clear estimate of her likely costs, and keeps to the estimate. All of us working with Millie have been extremely satisfied with her services. As a result of our experience with Millie, we have referred other members of our family to Holmes & Hills for legal advice”
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