A CIL Charging Query

Afternoon Jim, there is an FAQs page on the PAS CIL website (link as follows) that may help, although there are no references to applicable CIL Regs.

http://www.pas.gov.uk/pas/core/page.do?pageId=1242969#contents-12

See in particular the following question / answer:

How long does a building have to be vacant before the floorspace can no longer be offset against CIL liabilities triggered by new development, and is it different to abandonment?

Floorspace subject to demolition or resulting from change of use can only be deducted where it has been in continuous lawful use for at least six months in the twelve months prior to the development being permitted.

Not sure if this helps?

Not being a lawyer or working in DM, iam not sure of the strict interpretation but Reg 40 (10) refers to "a part of that building" being in lawful use. No definition as far as I can see of what "a part" means.

Not sure this offers clarity - from the planning portal website

'The Community Infrastructure Levy will not normally be charged on the floorspace resulting from a change of use or any floorspace lost through the demolition of buildings as part of a development. Deductions in respect of the demolition or the change of use of existing buildings will only apply where the existing building has been in continuous lawful use for at least six months in the 12 months prior to the development being permitted.'

In my view, the question of 'lawful use' only comes into play if some element of demolition is involved.

Assuming no newbuild and no demolition (you don't suggest there is any), an area of 20,000m2 (use any figure you like!), a CIL rate for the new use of £75/m2, and BCIS indices of 221(Ic) and 223 (Ip), the calculation under Reg 40(6) is (10,000 *(10,000 - 0))/10,000 = 1 and the caclulation under Reg 40(5) is ((75 x 1 x 223)/221) = £75.68. As that's in excess of the £50 threshold under Reg 40(3), the £75.68 is chargeable. If the CIL rate was less than £50/m2, then CIL wouldn't be chargeable




£75 x 1 x

Whoops - I pressed the Post button too early, so thought I should correct myself before others did!

Firstly, in the example I gave, I should have said 10,000m2, not 20,000m2.

Secondly, I overlooked the amended Reg 40(6) (Reg 7(1) of the 2011 Regs) which provides for the deduction of the gross internal floor area of existing buildings in lawful use. 'Use' is defined in Reg 40(10) as a part of the building being in use for a continuous period of at least months within the period of 12 months ending on the day planning permission first permits the chargeable development and clearly the ground floor has been in use (presumably lawfully), therefore the calculation under Reg 40(6) is ((10,000 - 10,000) x (10,000 -0))/10,000 = 0 and the calculation under Reg 40(5) is ((75 x 0 x 223)/221) = £0. So no CIL payable.

However, it's interesting to speculate what the situation would be if the ground floor wasn't in 'use'. It's interesting that the legislation doesn't use the word 'occupation' or phrase 'lawful occupation'. I can imagine landlords and their agents making the argument that such properties were in use but merely unoccupied. What if the office space had been on the market as office space for a continuous period of at least 6 months within the 12 month period? Does that demonstrate that the buildings were in use but merely unoccupied? I imagine that case law on abandonment comes into play here What if a developer mis-develops a site, can't let it, and has to seek planning permission for further changes to render it lettable - is his misery compounded by being hit with CIL, possibly again?