Recent CIL appeal decisions–beware mezzanines can be part of the GIA and retrospective variations will not benefit from CIL exemptions

The first appeal decision, dated 3 September 2024, relates to a proposal to demolish an existing building and to replace it with a seven-storey building. The developer challenged the charging authority’s calculation of CIL, arguing that it was based upon an incorrect interpretation of the GIA that the relevant planning permission authorises.  

The charging authority calculated the GIA, and therefore CIL, as including each of the seven mezzanine levels; it considered that installation of the upper floors would be inseparable from the development for which planning permission was granted. The developer argued that the mezzanine levels did not form part of the planning permission that was granted and should therefore not be included within the GIA calculation. They explained that mezzanines would be installed post construction, at which time a separate planning permission would not be required and CIL would not be chargeable (as they would be mezzanines created within existing buildings and not liable for CIL). 

GIA is not defined in the CIL Regulations 2010, but the generally accepted definition requires mezzanine floors to be included if they have permanent access. The decision-maker in this appeal was persuaded that the GIA of the development for which planning permission was granted was a building with seven floors and, for CIL purposes, the chargeable development should therefore include all seven floors. This was because there was evidence of three fixed stairwells, two lifts and floor plans showed for the seven levels within the documents that made up the planning application. Furthermore, the description of the development for which planning permission was granted was “a seven storey self-storage building” and the approved plans show seven floor levels with permanent access to the six upper floors.  

In relation to the developer’s statements that the mezzanines would be installed post construction and would not attract CIL at that time, the decision maker concluded that the mezzanines could not be considered alterations to an existing building. Rather, they would form part of the functioning use of the building, and therefore part of the development for which planning permission was granted.

The decision-maker found that the local authority’s calculation of GIA and therefore CIL was correct and dismissed the appeal. 

It is important that developers are conscious of what their planning permission actually authorises and what the GIA is in reality. This appeal demonstrates that decision-makers can and do look beyond the planning permission itself (i.e. to the supporting documents and evidence) to clarify what the planning permission actually authorises and therefore the GIA that attracts CIL liability.  

The second appeal decision, dated 10 September 2024, relates to an application to retrospectively allow amendments to the design of a replacement dwelling. Planning permission was granted for a replacement dwelling and detached garage, however there were significant differences between the development that was authorised and the development that had actually occurred.

In order to prevent enforcement action, the developer submitted a section 73A planning application to vary the relevant planning permission condition and to authorise an amended plan.  The charging authority then charged the developer CIL for the new dwelling house on the basis that:

• developments consented retrospectively via a section 73A permission are not exempt from CIL; and
• exemptions obtained for a development authorised by previous planning permissions are not carried over to a development that is authorised through a section 73A permission i.e. the section 73A application stands on its own and is CIL liable. 

The decision-maker confirmed the charging authority’s view that developments consented retrospectively through a section 73A permission are not able to obtain relief or exemption from CIL (other than the minor development exemption). CIL relief must be granted prior to commencement of development in most cases.  In addition, because the section 73A application was essentially a new application, it was CIL liable in the usual way and the local authority was able to seek CIL from the developer on the basis of the development authorised by the section 73A application.

Developers that have relied on CIL exemptions for development proposals and seek to depart from the approved plans must think about CIL implications at an early stage. If the departure is going to require a section 73A variation application, it is critical that works do not commence unless and until a variation is approved and a new CIL exemption (if applicable) relating to the new proposed plans obtained.