The claimant self-builder obtained planning permission for a partial demolition and extension of his existing chalet bungalow. Community infrastructure levy was not payable in respect of that development as the local authority exempted residential extensions from the levy. However, after visiting the site during the course of the demolition work the local authority’s planning officers concluded that the works undertaken had gone beyond those authorised by the planning permission and that the development was therefore unauthorised. The claimant submitted a new, partly retrospective, planning application to regularise the demolition works undertaken and to permit the subsequent rebuild of the house. He also applied for an exemption from community infrastructure levy on that development based on regulation 54A of the Community Infrastructure Levy Regulations 2010 which applied to self-build housing. The local authority granted retrospective planning permission, pursuant to section 73A of the Town and Country Planning Act 1990, for the demolition and for the erection of a new detached six-bedroom dwelling. However, in its capacity as charging and collecting authority for community infrastructure levy it refused the self-build exemption, taking the view that the claimant could not benefit from that exemption where planning permission was sought retrospectively and that the levy was accordingly payable. The judge, dismissing the claim for judicial review, held that the strict criteria for claims set out in regulation 54B(2) had the effect of barring the availability of the self-build exemption where planning permission was sought retrospectively under section 73A of the 1990 Act for development already carried out. In particular, the self-build exemption in regulation 54A of the Community Infrastructure Levy Regulations 2010 was not granted automatically, or by operation of the 2010 Regulations, to anyone who built their own dwelling but instead required the person seeking to benefit from the exemption to submit a claim to the collecting authority in accordance with regulation 54B. The requirement in regulation 54B(2)(a)(i) for the claim to be made by someone who “intends to build, or commission the building of” a dwelling imposed a forward-looking test which was not consistent with an application by a person who had already built or begun to build a dwelling. The claimant appealed, contending that there was no such bar to the availability of the self-build housing exemption and the judge’s interpretation of the statutory provisions for the 2010 Regulations, in particular regulations 54A and 54B, was wrong. The approach adopted by the judge would frustrate the statutory purpose behind the self-build housing exemption, which was to create an incentive for self-building. To give effect to that statutory purpose, the exemption should be available to all who built their own homes, including those who relied on a retrospective planning permission.
On the claimant’s appeal—
Held, appeal dismissed. Regulation 54A(1) of the Community Infrastructure Levy Regulations 2010 attached the exemption for self-build housing to a “chargeable development”, which, under regulation 9(1), was a “development for which planning permission is granted”. It followed that a “chargeable development” referred to development for which planning permission had already been granted and did not include development for which planning permission was yet to be granted. An essential part of the regime for the self-build housing exemption in the 2010 Regulations was the strict procedure in regulation 54B, adherence to which was obligatory. An indispensable requirement, under regulation 54B(2)(a)(ii), was that a claim for the exemption had to be made by a person who “had assumed liability to pay” the community infrastructure levy. Under the statutory scheme it was only if planning permission was granted for a “chargeable development” that liability to pay the levy could be assumed, the amount of that liability duly calculated, and the availability of any exemption ascertained. In particular, under regulation 31(1) liability to pay the levy could only be assumed for a “chargeable development”, and under regulation 31(7) a person could not assume liability to pay the levy “in respect of a chargeable development after that development has been commenced”. Furthermore, under regulation 7(5) development for which planning permission was granted under section 73A of the Town and Country Planning Act 1990 was “to be treated as commencing on the day planning permission for that development is granted”. It followed that a person could not validly assume liability to pay the levy before planning permission was granted, but also could not after development was commenced. For retrospective planning permission, the effect of regulation 7(5) taken with regulation 31 was to eliminate the gap between the grant of planning permission and the commencement of development, so as to make it impossible validly to assume liability for a chargeable development. Under these arrangements, the gap between grant of planning permission and commencement of development which existed for prospective grants of planning permission did not exist for planning permission granted under section 73A. In principle, therefore, by the operation of the relevant statutory provisions, the self-building housing exemption was not available where the “chargeable development” was first authorised by a retrospective planning permission granted under section 73A (paras 45, 46, 50–61, 63–64, 66, 70–71, 74, 75, 76).
Saira Kabir Sheikh QC (instructed by James Smith (Planning Law Services) Ltd) for the claimant.
Emmaline Lambert (instructed by Head of Legal and Democratic Services, Hertsmere Borough Council, Borehamwood) for the for the local planning authority.
Richard Honey QC and Ben Du Feu (instructed by Treasury Solicitor) for the interested party, the Secretary of State for Housing, Communities and Local Government.