If you are planning to use existing buildings or looking to demolish existing buildings on site as part of a development it is important you follow the correct procedures, especially if you are looking to off-set CIL costs.
In certain circumstances the floor space of an existing building can be taken into account in calculating the chargeable amount.
Each case is a matter for the collecting authority to judge. Where part of an existing building has been in lawful use for a continuous period of 6 months within the past 3 years, parts of that building that are to be demolished or retained can be taken into account.
The way those parts are taken into account is set out in the formula in regulation 40(7) (as amended by the 2014 regulations).
Where an existing building does not meet the 6-month lawful use requirement, its demolition (or partial demolition) is not taken into account. However, parts of that building that are to be retained as part of the chargeable development can still be taken into account if the intended use matches a use that could have lawfully been carried out without requiring a new planning permission.
The detailed requirements are set out in regulation 40 (as amended by the 2014 regulations). Because there must be a lawful use, parts of that building where the use has been abandoned cannot be taken into account here.
To be lawful a use must be one of the following:
A building is in use for CIL purposes when the lawful use is being actively carried on.
This follows the High Court judgement of R (Hourhope Ltd) v Shropshire Council [2015] EWHC 818 Admin, which said that the building must actually be used for its lawful use not just that the building has a lawful use which could be carried on.
Whether a building is in use at any time depends on all the information and evidence of what activities take place and what the intentions of the persons using the building are.
It is the applicant’s responsibility to provide evidence to the council that a building is in lawful use and that the building, or part of the building, has been in use for at least 6 months, without a break, in the 3 years ending on the day planning permission first permits the development.
Evidence which could be submitted may include:
If the use is unclear we may ask for more evidence. If there is not enough information to prove the building(s) are lawful in-use buildings we may not count the floor space of the building(s) as a deduction from the CIL charge.
In these circumstances, the courts have held that, in deciding whether a use has been abandoned, account should be taken of all relevant circumstances, such as:
Where buildings are demolished or converted to make way for new buildings, the charge will be based on the floorspace of the new buildings less the floorspace of the demolished/converted buildings, that is the net increase in floorspace.
CIL regulations provide that the dwellings must have been in lawful use for a continuous period of at least 6 months in the last 3 years prior to when planning permission first permits the development, and that the buildings must be in situ at the time that the permission first permits the development.
For the avoidance of doubt, the permission first permits the development on the day that planning permission is granted.
Where an applicant intends to rely on demolished floorspace to off-set their CIL liability, the buildings must still be standing on the day that planning permission is granted.
The council will not allow this floorspace to be deducted where the buildings have been demolished before planning permission is granted.
Where the agent/applicant is asked to provide evidence that a building has been in use for a continuous period of at least 6 months in the 3 years prior to the permission first permitting the development, Council Tax, business rate records, photographs and other documentation will be required as evidence.
Where only a small part of the building to be demolished has been in use for over 6 months in the last 3 years prior to the development being permitted, all the floorspace in the building would be deductible from the floorspace of the new buildings.
In planning, lawful use is strictly defined and generally means an existing building or use that has planning permission, or where it has been in existence for a sufficient period that enforcement action against it cannot be taken.
If you have any concerns about whether your property is in lawful use, contact us for advice.
Applicants must declare on their Form 1 CIL Questions Form submitted with their planning application the amount of floorspace to be demolished and that it was in use for the appropriate period. See our CIL process page for more information.
If this is not declared, we will assume that any existing buildings on the site have zero floorspace and will not deduct it from the CIL calculation.
Please contact the Community Infrastructure Levy team if you have any queries.
Email: cil@eastcambs.gov.uk
Telephone: 01353 665555