Inspectors uphold surcharges imposed for failure to submit Commencement Notices

Two recent unsuccessful appeals highlight the importance of making sure that a Commencement Notice has been submitted before commencing chargeable development to avoid surcharges. 

Under Regulation 67(1) of the Community Infrastructure Regulations 2010 (the CIL Regulations), a Commencement Notice must be submitted to the relevant collecting authority no later than the day before the day on which the chargeable development is to be commenced. If a developer fails to comply, Regulation 83 provides that the collecting authority may impose a surcharge equal to 20% of the chargeable amount payable or £2,500, whichever is the lower amount. 

The appellant in the first case (appeal ref: APP/C1435/L/19/1200365 dated 28 May 2020) appealed against surcharges imposed by Wealden District Council for failure to assume liability and failure to submit a Commencement Notice before commencing chargeable development, on the grounds that the Council had failed to serve a Liability Notice. The Council maintained that it had sent a Liability Notice via email and post to both the appellant and the appellant’s agent, but unfortunately the relevant email had ended up in the agent’s junk email box. 

The Inspector was satisfied that the Council had correctly served the Liability Notice and therefore dismissed the appeal under this ground. 

The appellants in the second case (appeal ref: APP/A1910/L/20/1200378 dated 11 June 2020) did not submit a Commencement Notice prior to carrying out demolition works on 18 December 2019 as they did not believe that ‘demolition’ constituted development. 

The Inspector dismissed the appeal against surcharges imposed by Dacorum Borough Council for failure to submit a Commencement Notice.  Under the Town and Country Planning Act 1990, development is begun on the earliest date on which any material operation comprised in the development begins to be carried out – a material operation expressly includes the demolition of a building. The Inspector also noted that the description of development in the relevant planning permission clearly included demolition. 

The Inspector concluded that works began for the purposes of the CIL Regulations at the point demolition works started.  Although a Commencement Notice was eventually submitted (which gave a commencement date of 18 December 2019), it was not submitted before the demolition works began and was therefore invalid.  

The moral of the story? A Commencement Notice should always be submitted before works (including works of demolition where relevant) on a chargeable development are begun. If you have not received a Liability Notice in relation to a chargeable development, check your junk mail, and follow up with the relevant collecting authority in good time, so that you can submit a Commencement Notice before chargeable development is begun.

This article was written by Lydia O'Hagan. For more information please contact Lydia or any member of the Real Estate Planning team.