Decision details

To remove the CIL charge of £44,080.10 and associated Surcharges and
Late Payment Interest levied. in the case of:
• Planning Application Reference Number: 21/01839/FUL
• Site: 130 Albert Road, Cheltenham, Gloucestershire. GL52 3JF
• Description of Development: Construction of dwelling, garage and
new access to highway

Application published on the Building Control ‘commenced applications’ list on 26 January 2022 and the Building Control ‘completed applications’ list on 03 October 2022. However no Commencement Notice had been submittedand this only came to light on 20 January 2023 when a Conveyancing Search was received for the new dwelling.
However investigations determined that it had not been planning permission 21/01839/FUL that had commenced but a subsequent application, 22/00342/FUL, which had not been identified as CIL liable by the Planning Case Officer in the Uniform case management system. As a result of this mistake it was not possible to issue a Liability Notice 11 months after the grant of planning permission 22/00342/FUL, which was on 22 April 2022, because we failed to serve the relevant notices “as soon as practicable after the day on which a planning permission first permits development” as required by Regulation 65 and there is caselaw to support thisFollowing OneLegal opinion that “If the original scheme (21/01839/FUL) which was subject to the liability notice was not commenced, then the requirement to pay that CIL charge will not have arisen and will not now be enforceable”, the CIL Charge and associated surcharges and interest should now be removed.
For this reason I have made the decision to exercise the discretion provided by Table 5 under Part 3E of the Council’s Constitution to remove the CIL Charge and associated surcharges and interest, which should not have been applied to planning permission 21/01839/FUL.

One Legal Opinion “Unfortunately, I do not think the Council will be able to
argue that recovery of the sums should now be made” as “the original
scheme (21/01839/FUL) which was subject to the liability notice was not
commenced”. 09 April 2024

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”
Chief Planning Lawyer, by email (31 January 2020)
Advice Received that “The commencement of the development triggers the liability to pay”. “If the original scheme (21/01839/FUL) which was subject to the liability notice was not commenced, then the requirement to pay that CIL charge will not have arisen and will not now be enforceable”.
Locum Senior Planning Lawyer, by email (09 April 2024)