Decision details

To exercise the discretion, under Regulation 83 of the Community Infrastructure Levy Regulations 2010 (as amended), to waive the surcharge for failure to submit a Commencement Notice in the case of:

·         Planning Application Reference Number: 19/01585/FUL

·         Site: Cheltenham Gas Club. Arle Avenue, Cheltenham, Gloucestershire. GL51 8JP

·         Description of Development: Conversion of roof storage area to create additional one bedroom apartment at second floor level in existing apartment block.

Liable Party: Rooftop Housing Group, 70, High Street, Evesham, Worcestershire. WR11 4YD

Rooftop Housing Group are a Registered Social Landlord who purchased the property on completion on 29 October 2019 from a property developer.

Whilst The original permission (16/01136/FUL) to demolish the former Gas Club and build 9 apartments and 4 houses at Arle Avenue, Cheltenham was granted on the 30 June 2017 and was therefore not CIL liable, the second permission (19/01585/FUL), which sought retrospective permission for an additional dwelling created by the conversion of loft space was granted on 20 September 2019 and is therefore CIL chargeable.

Affordable housing is normally granted mandatory social housing relief from CIL, but this must be claimed prior to commencement of development by a party with an interest in the land who have assumed liability to pay the CIL charge. In this case this did not happen.

As a result of the developer not assuming liability, claiming social housing relief or submitting a commencement notice Rooftop housing have accepted that the CIL charge is payable but have asked the Council to exercise their discretion not to impose a surcharge for failure to submit a commencement notice, on the grounds that they were not the owners at the time that this was required and could therefore not do this.

As per Regulation 83(1) of the Community Infrastructure Levy Regulations 2010 (as amended) exceptional circumstances exist in this case as a social housing provider should be able to claim for mandatory social housing relief but, in this case, Rooftop housing accept that they are not able to do this resulting in the Council already receiving “the twin benefits of the receipt of a CIL contribution and the provision of a scheme which provides 100% affordable housing” so waiving the discretionary surcharge would recognise this.

For this reason and in support of our Corporate Plan priority to increase the supply of housing, in particular as this is meeting the needs of those whose housing needs are not being met by the market, I have made the decision to exercise this discretion.

Pursuing the surcharge of £2,259.60 in addition to the £11,298.00 CIL charge and the £50 surcharge for failing to assume liability, which on an affordable development would not have been payable had the relevant forms been submitted and agreements entered into by the contractor.

Whilst the Regulations do not provide the discretion to waive the CIL charge or the surcharge for failure to assume liability it does in the case of the failure to submit a commencement notice and in doing so reduces the penalty being endured by this social housing provider.

Advice Received that the lead officer may feel that they can take the decision under that part of Table 5 under Part 3E of the Constitution whereby they can “Take all steps reasonably necessary for the effective and efficient delivery of services for which they are responsible”

Cheryl Lester, Chief Planning Lawyer, by email (31 January 2020)

The authority of the lead officer is delegated to the Head of Planning.

One Legal and Leader/Cabinet Member