Following the Supreme Court’s decision in the Hillside Parks case (p39, 18.11.22), varying large multi-unit consents may require a replacement application covering the whole site.
This results in two separate planning permissions authorising separate chargeable developments: the original consent and the variation consent. From a Community Infrastructure Levy (CIL) perspective, this is far from ideal.
CIL regulations allow developers to discount the floorspace of buildings that are either to be demolished or that are retained if they have been ‘in lawful use’ for a specified period. But to benefit from this discount, the building needs to still be standing when the variation consent ‘first permits development’. The qualifying period is also calculated backwards, from an end date that changes depending on the planning permission applied for. A building that was in lawful use when the original consent first permitted development could therefore cease to qualify by the time the variation consent permits development.
A second problem arises where the variation consent is partly retrospective. The majority of reliefs drafted into the CIL regulations do not apply to retrospective consents. Unless you are making a Section 73 application, there is no mechanism for transferring a relief granted for one permission across to a later one. This means the variation consent will not qualify for most reliefs.
A partial solution to these issues in the CIL regulations is abatement. Regulation 74B states that you can credit any CIL payments already made under the original consent against the liability of the variation consent. It also allows for demolition discounts to be transferred across in certain circumstances. However, abatement only applies to CIL payments that have already been made and is not automatic. It must be requested before development under the variation consent commences. To transfer the benefit of any demolition discounts, the application needs to be made within three years of the original consent having been granted.
The Supreme Court’s decision has made amending some planning permissions more complicated and more costly. I need a strong coffee, a copy of the CIL regs and a damage limitation strategy.
Nicola Gooch is a planning partner at Irwin Mitchell
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