Decision details

To waive the CIL (Community Infrastructure Levy) surcharge (£710.40) imposed on the below development (imposed due to a failure to serve a CIL commencement notice)

• Planning Permission Ref. 19/01822/FUL
• Address: West Lodge, Cold Pool Lane, Cheltenham, Gloucestershire, GL51 6JF
• Description: Construction of a 3-bed single storey dwelling utilising the existing access from Sunnyfield Lane, following the demolition of the existing buildings.
• Validation Date:Mon 16 Sep 2019
• Decision Date: Thu 21 Nov 2019

Regulation 83(1) of the Community Infrastructure Levy Regulations 2010 (as amended) provides the council with the authority to waive the surcharge for failure to submit a Commencement Notice stating that the Charging Authority ‘may’ impose a surcharge equal to 20 per cent of the chargeable amount payable in respect of D or £2500, whichever is the lower amount.

The liable party submitted what they, at that time, genuinely believed to be, the ‘commencement notice’ most likely because the planning decision notice advises the recipient to submit the commencement form (which is attached to the decision notice) as well as notification of commencement for Building Control purposes; it has become apparent that they did not realise that a third CIL ‘Commencement Notice’ was also necessary because that is not at all clear on the CBC decision notice.

Whilst, since 01 September 2019, failure to submit a valid commencement notice does not result in the loss of the self-build relief that has been granted, a surcharge of “20 per cent of the chargeable amount payable in respect of D or £2,500, whichever is the lower amount” may be applied. In this case this would result in a penalty of £710.40 for what I am satisfied was genuine error - not helped by the lack of a clear explanation regarding commencement notices and CIL on the decision notice.

The standard planning decision notice template will be changed going forward to avoid this issue arising again in the future.

It should be noted that the council was unsuccessful in defending a very similar appeal in relation to CIL surcharges; this is an important consideration.

The alternative option is to not waive the surcharge, but that position is not supported by recent caselaw and is not considered to be reasonable

Not applicable; this is not considered necessary given the low values involved.  Advice from One Legal has previously been obtained in relation to a similar matter confirming that waiving CIL Surcharges in appropriate circumstances is appropriate and within the remit of the Head of DM/Head of Planning.