The Nooks and Crannies of CIL
An interesting note via Southwark and their queries with the GLA giving an interpretation of CIL Regulations. It deals with,
- when is a temporary permission not temporary?
- when is a Use, not a Use?
- when is a Charity, not a Charity?
Of particular interest to me is the issue of ‘Use’. The note considers the issue of whether vacant floorspace is in ‘use’ for the purpose of the CIL Regs, and whether it counts as a ‘credit’ against new floorspace being created, thereby reducing CIL liability. The note states;
“Under regulation 40, account can be taken in calculating the chargeable amount, of buildings that are situated on the relevant land and in lawful use. Paragraph (10) says that:
“For the purposes of this regulation a building is in use if a part of that building has been in use for a continuous period of at least six months within the period of 12 months ending on the day planning permission first permits the chargeable development”
The question has been raised whether “use” means:
- occupation and use, or
- whether it should be given the meaning given the term in planning law , under which a building’s use does not necessarily lapse simply because it is no longer occupied, in the absence either of evidence of “abandonment”.
The GLA has taken advice from Leading Counsel, who has advised that the given the way regulation 40(10) is worded it is the first of these meanings that should be given. To be taken into account in the calculation, it should be shown that the building (or part of the building) has been in actual use for a continuous period of six months in the period of twelve months ending with the granting of planning permission.
This means, for example, that if an office building has been vacant for longer than the period specified in the Regulations it may not be taken into account even where it can be shown, as a matter of planning law, that the office use has not been abandoned. It is likely to have particular implications for projects that involve the large scale emptying of buildings before development takes place, such as estate renewal schemes.
Developers wanting to ensure that “emptied” buildings are taken into account will need to ensure that some element of lawful and actual use remains on site.”
Having worked on a number of BPRA funded schemes, bringing back into active use empty office buildings where by definition the buildings must have been vacant for over 12 months to qualify for the BPRA Government Tax Incentives – this interpretation of the CIL Regs presents a dilemma. It seems odd to depart from long established principles of Planning Law about the use of buildings – there is also a sense of a lack of ‘natural justice’, that for reasons often beyond the control of an applicant, two identical schemes under the same CIL regime could have substantially different CIL liabilities, simply because one has been occupied, and the other not. More often or not, one might think that it is the vacant scheme, where lettings have been hard to come by, and investment already struggling, that is going to be hit harder, than a redevelopment scheme in a more prosperous area where lettings are easier to come by.
Keith Fenwick, Director – Birmingham.