Gardiner v Hertsmere Borough Council & Anor [2022] EWCA Civ 1162 (16 August 2022)

Gardiner v Hertsmere Borough Council & Anor [2022] EWCA Civ 1162 (16 August 2022)

The self-build housing exemption from CIL is not available where planning permission is granted retrospectively under section 73A of the Town and Country Planning Act 1990. The statutory scheme requires a gap between the grant of planning permission and commencement of development to allow for the assumption of liability and claim for exemption, which does not exist for retrospective permissions. Therefore, the exemption cannot be validly claimed in such circumstances.

Citation
[2022] EWCA Civ 1162
Parties
Appellant: Nathan Gardiner; First Respondent: Hertsmere Borough Council; Second Respondent: Secretary of State for Levelling Up, Housing and Communities
Jurisdiction
England and Wales
Judgment Date
16 August 2022
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (planning Court)
Outcome
Appeal dismissed
Legal Topics
Community Infrastructure Levy (cil), Self Build Housing Exemption, Retrospective Planning Permission, Statutory Interpretation, Judicial Review
Planning Law Tax Law Administrative Law Community Infrastructure Levy (cil) Self Build Housing Exemption Retrospective Planning Permission Statutory Interpretation Judicial Review

Case Brief

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Parties

Nathan Gardiner

Appellant

Hertsmere Borough Council

First Respondent

Secretary of State for Levelling Up, Housing and Communities

Second Respondent

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (planning Court)

Legal Issues

  1. 1 Whether the self-build housing exemption from CIL under regulations 54A and 54B of the Community Infrastructure Levy Regulations 2010 is available when planning permission is granted retrospectively under section 73A of the Town and Country Planning Act 1990.

Ratio Decidendi

The self-build housing exemption from CIL is not available where planning permission is granted retrospectively under section 73A of the Town and Country Planning Act 1990. The statutory scheme requires a gap between the grant of planning permission and commencement of development to allow for the assumption of liability and claim for exemption, which does not exist for retrospective permissions. Therefore, the exemption cannot be validly claimed in such circumstances.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The order of the High Court is upheld. The decision of Hertsmere Borough Council to refuse the self-build housing exemption and to issue a CIL liability notice stands.