In an example of the strict line being taken on appeal in respect of the administrative requirements placed on developers under the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”), a planning inspector has decided that the onus is on applicants to ensure that they have not only served a Commencement Notice, but that it has been received by the Council.

In this case, a CIL Liability Notice was served by the London Borough of Hackney (LBH) on 13 June 2016. This was followed by a Demand Notice on 14 August 2017.

CIL Regulation 67(1) requires that a Commencement Notice must be submitted to the collecting authority no later than the day before the day on which the development is to be commenced. In this case, LBH imposed a surcharge on the applicant in respect of an alleged failure on his part to serve this notice.

The applicant appealed on the basis that a Commencement Notice was in fact submitted on 26 June 2016 advising of a commencement date of 25 July 2016. LBH stated that it had no record of receiving it.

Onus on developer to check receipt….

In dismissing the appeal, the Inspector stated that;

Ultimately, the onus was on the appellant to ensure a CN was received by the Council at least one day before works began on the chargeable development. The Liability Notice makes clear the possible consequences of failing to do so. Given the importance of the notice and the fact that the appellant could potentially be facing a surcharge, it is not unreasonable to expect him to have contacted the Council before starting works to check they were in safe receipt of the notice to obtain written confirmation. I take the view that to press ahead with development without taking such steps was a risky strategy to take. While the appellant is correct to say there is no obligation for documents to be submitted by Recorded Delivery, the result of choosing not to do so has resulted in there being no proof of postage. Therefore, although a CN was submitted with the appeal documents, there is no evidence before me to demonstrate that one was actually submitted to the Council before works on the chargeable development commenced. Therefore, while I have some sympathy with the appellant in these circumstances, I cannot allow the appeal on the evidence available.

Check, check and check again…

Where chargeable development is commenced before the collecting authority has received a valid commencement notice, the collecting authority may impose a surcharge equal to 20 per cent of the chargeable amount payable or £2,500 (whichever is the lower).

In light of this, the clear message is that applicants serving Commencement Notices should, at the very least, ensure that they retain dated proof of postage and, if necessary, take action before commencing development to ensure that the charging authority complies with its obligation under CIL Regulation 67(4) to send an acknowledgement of receipt.

Appeal Decision: APP/U5360/L/17/1200134, 24 January 2018. 

About the author

John Gregory Head of Planning

John is a specialist planning lawyer with extensive experience of advising on all aspects of the planning process.