Well, we’re back at our desks after that glorious Easter break; hope you all got out and enjoyed the fabulous sunshine and the blessed radio-silence from Brexit for a few days. Our bank holiday weekend was made all the sweeter by the late receipt of a successful decision from the Valuation Office Agency (VOA) over a Regulation 114 Community Infrastructure Levy (CIL) appeal that we were running. Here’s a summary of the saga…
One of our Bristol clients had instructed us to challenge the CIL liability being levied against an A3/A4 food and drink redevelopment scheme for which we secured consent last summer. Bristol City Council were arguing that A3 and A4 uses should be charged as retail development, despite not being clearly expressed as such in their adopted CIL Charging schedule. We submitted an appeal to the VOA in September, arguing that the schedule lacked clarity and that A3/A4 uses should actually fall within the catch-all (and significantly cheaper) category of ‘other chargeable development’. BCC’s response was to suggest that the adopted CIL schedule followed the Oxford dictionary definition of retail which includes ‘the sale of goods for use or consumption’, aside from how retail and food and drink uses are identified separately in the adopted Local Plan. However, the VOA Inspector eventually came down on our side, agreeing that the A3/A4 uses do constitute ‘other chargeable development’ and concluding that ‘it is the purpose of the CIL schedule to provide predictability to development in the amount of CIL chargeable. Therefore the CIL Charging Schedule should be read from the point of view of a developer, thus giving the context of the interpretation of retail away from the dictionary definition. The intention of the CA (Collecting Authority) in the use of retail is irrelevant unless it accords with the understanding of its intended audience’.
Needless to say, we are delighted for our client and believe it’s a sound and common-sense decision. A Charging Schedule must be absolutely clear over how much development will be liable for – developers/applicants/Joe Bloggs can’t be expected to second-guess what is included in a charging category if it isn’t explicitly stated.
Aside from the result, it’s been something of a learning experience for us (we’re indebted to the input of Tim Leader of St Johns Chambers and Polly Reynolds from Temple Bright LLP), and very useful to familiarise ourselves with this alternative appeal process. So, if you’ve ever considered challenging the CIL liability of your development or were unaware you could even do so, here are some key pointers that we’ve picked up about the Regulation 114 process;
- A Regulation 114 CIL appeal is made to the Valuation Office Agency (an Executive agency of HMRC) under the Community Infrastructure Regulations (2010) as amended. The majority of appeals will be made under Regulation 114 because this applies where there is disagreement over the calculation of the CIL Charge contained in the liability notice, normally attached to your planning permission (other forms of CIL appeal can be made under Regulations 115-119 to either the VOA or PINS);
- Before submitting your Regulation 114 appeal, you must first ask the Collecting Authority (i.e. the relevant Council) to review the proposed CIL liability, and they must respond within 14 days of your request. You can only appeal under Regulation 114 if you still then disagree with the charge;
- Once you’ve received the Collecting Authority’s review, you can then submit your appeal. This must happen within 60 days of the original liability notice, and there is no wriggle room on this deadline. You can’t appeal if you’ve already commenced development (and the appeal will also lapse if development commences before you’ve been told of the outcome of the appeal);
- As per a PINS Written Reps appeal, all documents must be submitted up-front with your appeal or it won’t be validated. Your grounds of appeal and the completed appeal form effectively comprise your case, so they must be comprehensive and well constructed – you won’t have an opportunity to supplement them later (other than commenting on interested parties representations). The evidence you provide to support your appeal can take any form and include data, plans, sales evidence or expert reports;
- As well as your grounds of appeal, you must submit various essential documents or again your appeal will be invalid. These include copies of all the plans and documents submitted with the planning application, as well as any CIL-related correspondence you’ve had with the Collecting Authority. It’s time-consuming, so ensure you have ready access to all these well before the 60 day deadline;
- Once acknowledged and validated by the VOA, you’ll be notified of the ‘Appointed Person’ determining your appeal (i.e. the Inspector), who is responsible for informing all interested parties of the appeal and requesting any written representations within 14 days. The interested parties comprise a ‘defined’ list including, amongst others, the charging authority, the collecting authority (if not the charging authority) and the person who has assumed liability to pay CIL;
- Any written representations made are then circulated by the appointed person to the appellant and all the interested parties, again with a 14 day deadline for further comments. The appointed person can also raise any other issues considered relevant and invite comments on them from all the parties and has the discretion to vary the deadlines for representations if necessary. This ‘representation period’ can, therefore, be lengthy, as all parties are given the time and opportunity to comment on various potential rounds of exchanged material;
- Finally, the Appointed Person issues a decision, summarising all the information and opinions submitted and setting out their own observations and conclusive calculation on the CIL that should be chargeable. Unlike a conventional PINS appeal there is no site visit or potential for discussion of the issues, so it’s very much about the cogency of your written case throughout. A Regulation 114 appeal will take a minimum of 30 days to determine, but in some complex cases may be much longer (ours was a 6 month decision);
- And as a reminder, there is no right to appeal against the VOA decision other than by means of judicial review, if either party believes the decision was wrong in law.
So, pursuing a Regulation 114 CIL appeal is actually a relatively straightforward process (admittedly we’ve no experience of the Regulation 115-119 routes), but you must have your grounds of appeal and supporting evidence ready from the outset and you must adhere to the rigid timescales throughout. It actually proved a more inclusive and consultative process than we anticipated, and it would be interesting to hear if your experiences have been the same. Do drop us a line and share your views on the VOA as an appeal authority, we’re really keen to hear them.