天美影院

Appeal Decision

by redacted 听惭搁滨颁厂

an Appointed Person under the Community Infrastructure Levy Regulations 2010 (as Amended)

Valuation Office Agency - DVS

Wycliffe House
Green Lane
Durham
DH1 3UW
e-mail: redacted@voa.gov.uk.

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Appeal Ref: 1839096

Planning Permission Reference: redacted

Location: 聽redacted

Development: Proposed demolition of existing residential structure and existing garage with canopies. Erection of a new residential two-storey dwelling with associated landscaping (As amended and amplified by plans and information received redacted).

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Decision

I confirm a CIL Charge of 拢redacted to be appropriate and this appeal is therefore dismissed.

Reasons

1. I have considered all the submissions made by redacted (the Appellant) and redacted as the Collecting Authority (CA) in respect of this matter. In particular, I have considered the information and opinions presented in the following documents:-

a. Planning application redacted dated redacted.

b. Planning permission redacted granted by the CA on redacted for 鈥淧roposed demolition of existing residential structure and existing garage with canopies. Erection of a new residential two-storey dwelling with associated landscaping (As amended and amplified by plans and information received redacted).鈥�

c. The CIL Liability Notice redacted issued by the CA dated redacted with CIL Liability calculated at 拢redacted.

d. The Appellant鈥檚 request for a Regulation 113 review dated redacted.

e. The CA鈥檚 response dated redacted to the Appellant鈥檚 Regulation 113 review request.

f. The CIL Appeal Form dated redacted submitted by the Appellant under Regulation 114, together with documents and correspondence attached thereto.

g. The CA鈥檚 representations to the Appointed Person dated redacted, together with documents and correspondence attached thereto.

h. The Appellant鈥檚 response, together with documents and correspondence attached thereto, dated redacted and redacted.

Background

2. An application was submitted to the CA鈥檚 planning portal dated redacted reference redacted for 鈥淧roposed demolition of existing residential structure and existing garage with canopies. Erection of a new residential two-storey dwelling with associated landscaping.鈥�

3. Planning Permission redacted was granted on redacted聽 for 鈥淧roposed demolition of existing residential structure and existing garage with canopies. Erection of a new residential two-storey dwelling with associated landscaping (As amended and amplified by plans and information received redacted).鈥�

4. CIL Liability Notice聽 redacted was issued by the CA dated redacted聽 with liability calculated as:-

Minor Resi redacted

Proposed GIA redactedm2 @ 拢redacted/m2 index linked

= 拢redacted CIL Liability

5. The Appellant requested a Regulation 113 review on redacted.

6. The outcome of the CA鈥檚 Regulation 113 review was issued on the redacted, whereby the CIL liability as initially calculated was confirmed.

7. A Regulation 114 Appeal was submitted to the VOA dated redacted and received on redacted.

Appeal Grounds

8. The Appellant argues that in calculating the CIL charge the CA have made no deduction for the existing lawful buildings on the site.

9. The Appellant notes that the existing buildings were shown on the planning documents and the Gross Internal Area (GIA) confirmed as redacted m2 as per drawing no. redacted included with this appeal and submitted for planning.

10. The Appellant argues that the proposed GIA calculation used by the CA is incorrect and that the correct area is confirmed on drawing no. redacted included with this appeal and submitted for planning.

11. The Appellant considers the existing dwelling and workshop to be lawful, as planning permission for a home on this site was granted in redacted.聽 The site has been used as residential for over 10 years.

Consideration of the Appeal

Appeal Ground 1: no GIA deduction was made for the existing lawful buildings

12. I have considered the respective arguments made by the CA and the Appellant, along with the information provided by both parties.

13. There is disagreement between the parties over the matter of 鈥渋n-use buildings鈥� within Schedule 1 of the CIL Regulations 2010 (as amended), which provides for the deduction or off-set of the GIA of existing in-use buildings from the GIA of the total development in calculating the CIL charge.

14. Schedule 1 of the CIL Regulations 2010 (as amended) Part 1 鈥� standard cases 鈥� 1 (10) defines an 鈥渋n-use building鈥� as a building which:

(i) is a relevant building (i.e. one which is situated on the relevant land on the day planning permission first permits chargeable development);

And

(ii) which contains a part that has been 鈥渋n lawful use鈥� for a continuous period for at least six months within the period of three years ending on the day planning permission first permits the chargeable development.

15. The Appellant has contended that the CA鈥檚 floor area calculations make no reference to the existing property and they refer to Clause 9.2 of the CA鈥檚 charging schedule document:

9.2 CIL is charged on the gross internal floorspace 11 of new development. Where planning permission is granted for a development that involves the extension or demolition and then rebuild of a building in lawful use 12, the level of CIL payable will be calculated based on the net increase in floorspace. This means that the existing floorspace contained in the building to be extended or demolished will be deducted from the total floorspace of the new development when calculating the CIL liability.

16. The Appellant states they would expect the CA鈥檚 increased floor area calculation to be based on the proposed floor area minus a GIA of redacted m2 that covers the existing dwelling and garage.

17. Before the matter of whether the structures in question can be considered as a 鈥渞elevant in-use building鈥�, it must be established if indeed each structure was a relevant 鈥渂uilding鈥�.

18. The CA refer to the Design and Access Statement which states: 鈥淭he existing structure is a 鈥榗aravan like鈥� structure with composite sandwich panel walls and roof, corrugated roof canopy to the west of the existing structure and a garage with corrugated roof and canopy to the north鈥�. They have also included photographs with their submission (attachments redacted) taken from the planning application which show the garage and existing dwelling. The CA further note these are described in Design and Access Statement as being in a 鈥減oorly condition鈥� and in the Council Tax statements provided by the Appellant as 鈥渦ninhabitable鈥�. These statements only cover the period back to redacted however.

19. With regards to the existing dwelling: the CA refer to two previous CIL appeal decisions by the Appointed Person (AP) (attachments redacted) involving caravans/mobile homes and whether they may be classed as a building. They note that both decisions conclude that the physical attachment to the land is an important determining factor and this, along with the possibility of them being moved, means they are not a building.

20. The CA further comment that the subject site has a history of planning applications for the retention of a mobile home, the last being in redacted (attachment redacted). That decision notice allows the retention of one mobile home for a period of redacted years. In redacted an appeal allowed permanent use of a caravan on the site (attachment redacted).

21. The Appellant has responded that there has been no opportunity to investigate either by themselves or the CA as to the physical attachment of the dwelling to the ground, and state it 鈥渋s certainly not on wheels and a visual inspection to check the presence of any foundations is impossible due to the site being overgrown.鈥� The Appellant also notes that the previous CIL appeal decisions cited by the CA state that a caravan is defined as any structure designed or adapted for human habitation which is capable of being moved from one place to another. The Appellant argues that the existing dwelling would not withstand being moved anywhere.

22. Whilst Schedule 1 of the CIL Regulations 2010 (as amended) discusses the types of building not to be included for CIL purposes, it does not define what a 鈥渂uilding鈥� is.

23. The Planning Act 2008 defines 鈥渂uilding鈥� as having the meaning given by section 336(1) of the Town and Country Planning Act 1990, which defines 鈥渂uilding鈥� as something that 鈥渋ncludes any structure or erection, and any part of a building, as so defined鈥�. However, the definitions in the Planning Act are not applicable for CIL purposes, being specifically excluded from Part 11 of the Planning Act 2008 which references CIL.

24. The CA鈥檚 Contaminated Land Questionnaire dated redacted submitted by the Appellant along with this appeal describes the land and building use as 鈥渆xisting single storey structures, in a semi-permanent state and used for residential鈥�.

25. The CA鈥檚 Sustainable Construction Checklist (undated) submitted by the Appellant along with this appeal notes 鈥渢he existing site consists of an existing structure that is a 鈥榗aravan like鈥� structure with composite sandwich panel walls and roof, corrugated roof canopy and a garage with corrugated roof and canopy. The site and structures have been vacant since approx. second half of redacted.鈥�

26. The statutory definition of a 鈥渃aravan鈥� is contained in Section 29(1) of the Caravan Sites and Control of Development Act 1960:

鈥渃aravan鈥� means any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted, but does not include鈥�

(a) any railway rolling stock which is for the time being on rails forming part of a railway system, or

(b) any tent;

27. One of the two previous CIL appeal decisions by the Appointed Person referred to by the CA had briefly considered the case of Skerrits of Nottingham Limited v SSETR [2000] which confirms that the three factors established in Cardiff Rating Authority and another v Guest Keen Baldwin Iron & Steel Co Ltd [1949] must be taken into account in determining whether something is a 鈥渂uilding鈥�:-

i. size

ii. degree of permanence

iii. physical attachment to the ground.

28. The CA argues that a caravan cannot be a 鈥渂uilding鈥� because it neither has a degree of permanence nor is it physically attached to the ground.

29. Planning Permission redacted 诲补迟别诲听 redacted allowed 鈥渢he retention of one mobile home鈥� on the site for a period of redacted years. There had been an earlier refusal of planning permission under reference redacted dated redacted for use of the site as a 鈥減ermanent site for caravan鈥�, but a Planning Inspector鈥檚 decision dated redacted under appeal reference redacted allowed permanent use of a caravan on the site.

30. From the facts available, the dwelling is described in the Appellant鈥檚 own Design and Access Statement and their completed Sustainable Construction Checklist as a 鈥渃aravan like structure鈥�. The dwelling would also accord with the statutory definition of a 鈥渃aravan鈥� in Section 29(1) of the Caravan Sites and Control of Development Act 1960 as 鈥渁ny structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer)鈥� [my emphasis]. The dwelling in question, whilst not having any wheels, would appear to be something capable of being transported on another vehicle or trailer from one place to another and therefore satisfies the test set out in the Skerrits case, in that it is not permanently affixed to the ground, and the Planning Inspector鈥檚 decision dated redacted specifically allowed permanent use of a 鈥渃aravan鈥� on the site.

31. I have considered all the arguments made by the parties and find they do not fully address the key issue of whether the existing dwelling can be considered as a relevant 鈥渂uilding鈥�, and it is my view that it would need to be proven to be a relevant 鈥渂uilding鈥� in order to be capable of GIA off-set under the CIL Regulations.

32. Having regard to the above factors and having considered all the evidence and other submissions by both parties, it is considered that the existing dwelling in this case is a 鈥渃aravan鈥� and cannot be regarded as a relevant 鈥渂uilding鈥� for CIL purposes.

33. I therefore consider that the CA are correct not to make a GIA deduction for the area of the existing dwelling and it is therefore of no consequence whether the lawful use criteria are satisfied or not.

34. With regards to the existing garage/workshop: The Planning Act 2008 defines 鈥渂uilding鈥� as having the meaning given by section 336(1) of the Town and Country Planning Act 1990, which defines 鈥渂uilding鈥� as something that 鈥渋ncludes any structure or erection, and any part of a building, as so defined鈥�. The definitions in the Planning Act are not, however, applicable for CIL purposes, being specifically excluded from Part 11 of the Planning Act 2008 which references CIL.

35. In the absence of any clear guidance from Schedule 1 of the CIL Regulations 2010 (as amended) as to what a 鈥渂uilding鈥� is, reference can be made to the Pocket Oxford English Dictionary definition of a building, which refers to 鈥渁 structure with walls and a roof鈥�.

36. The RICS Code of Measuring Practice 6th Edition 2015 section 2.0 states 鈥淕ross Internal Area is the area of a building measured to the internal face of the perimeter walls at each floor level鈥� and section 2.16 specifically includes 鈥済arages鈥� as to be included in GIA measurements.

37. In my opinion the existing garage/workshop is therefore a relevant 鈥渂uilding鈥� and its area can be included in the GIA of existing buildings and therefore can be considered for offset against the GIA of the proposed development for CIL Liability purposes, but only if a relevant period of continuous lawful use in accordance with Schedule 1 of the CIL Regulations 2010 (as amended) can be satisfied. This is considered below under Appeal Ground 4.

Appeal Ground 2: GIA of existing buildings

38. The CA point to the amended plans, for which planning permission was granted, that show a GIA for the proposed development of redacted m2. The Appellant now accepts the CA鈥檚 GIA of redacted m2 and as this measurement is made in accordance with the RICS Code of Measuring Practice 6th edition May 2015 (ie measured to the internal face of the perimeter walls at each floor level) and no dispute as to this floor area calculation exists, the AP has no further decision to make on this matter.

Appeal Ground 3: GIA of proposed floor area

39. The CA comment that they accept the existing structures GIA of redacted m2 as measured by the Appellant鈥檚 agent, redacted聽 Architects. As this measurement is made in accordance with the RICS Code of Measuring Practice 6th edition May 2015 (ie measured to the internal face of the perimeter walls at each floor level) and no dispute as to this floor area calculation exists, the AP has no further decision to make on this matter.

Appeal Ground 4: Lawful use of existing dwelling and workshop

40. I have considered the respective arguments made by the CA and the Appellants, along with the information provided by both parties.

41. The existing dwelling is considered under Appeal Ground 1 above.

42. With regards to the existing garage/workshop: Schedule 1 of the CIL Regulations 2010 (as amended) Part 1 鈥� standard cases 鈥� 1 (10) provides that an 鈥渋n-use building鈥� means a relevant building which contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development.

43. Part 1 鈥� standard cases 鈥� 1 (10) also provides that 鈥渞elevant building鈥� means a building which is situated on the relevant land on the day planning permission first permits the chargeable development.

44. It has been accepted under Appeal Ground 1 above that the existing garage/workshop is a relevant 鈥渂uilding鈥� for CIL purposes, but the matter as to whether it has been in lawful use for the relevant period must now be considered.

45. The relevant period of continuous lawful use in accordance with Schedule 1 of the CIL Regulations 2010 (as amended) would be redacted to redacted.

46. The Appellant states that redacted , the previous owner, lived at the property 鈥漣n the last redacted years and died in early redacted 鈥�. They argue that an electricity bill was left at the dwelling which shows that electricity was charged and paid for in the period聽 redacted to redacted聽 鈥� a time period of just over redacted months. They also state that redacted neighbours have confirmed he lived at the property 鈥渋n the last redacted years before he died鈥�, although no supporting information, such as sworn statements, has been submitted.

47. The Appellant also argues that as Council Tax was charged to the now deceased owner until redacted the submitted recent Council Tax bills are evidence that the property was in residential use.

48. The first Council Tax 鈥淎djustment bill for redacted鈥� dated redacted notes the property was 鈥淓mpty Uninhabitable for period redacted to redacted鈥� whilst the second Council Tax 鈥淎djustment bill for 鈥� redacted also dated redacted聽 notes the property was 鈥淓mpty Uninhabitable for period redacted to redacted鈥�. This evidence therefore indicates the property was empty and/or uninhabitable at least between redacted up to and beyond the end of the relevant period for continuous lawful use (which would be redacted. This would leave聽 redacted months between redacted and redacted in which lawful use for a continuous period of at least six months would be possible.

49. The Appellant has submitted an 鈥渁mended electricity bill鈥� from redacted dated redacted聽 and addressed to 鈥渢he executors of redacted鈥� covering the period redacted to redacted聽 with a total bill of 拢redacted due to earlier credit being deducted from the total bill of 拢redacted. This amended bill does not, however, give any actual units of electrical usage during the relevant period.

50. The Appellant has also submitted a Residential 聽redacted search result from redacted 诲补迟别诲听 redacted which states at 2.1 that the property is not connected to public sewers for foul water drainage and at 2.2 is not connected to public sewers for surface water drainage. At 3.1 it confirms the property is connected to mains water. No bills or invoices have been submitted, however.

51. The CA commented that, regarding the garage/workshop which was initially stated by redacted聽 Architects in CIL Form 1 as 鈥渘ot in lawful use鈥�, they asked the Appellant for evidence of its lawful use. As no further evidence was provided, they were unable to determine whether it was a relevant building or whether it had been in lawful use. They state there is no dispute that the garage was used by redacted up to redacted, but don鈥檛 know what the lawful use was.

52. The Appellant has submitted a copy of an email dated redacted聽 to their architect stating 鈥淐IL Form 1 should have been ticked yes instead of no. The garage was used as a workshop which can be defined as a service area so both were habited in the last 36 months. I would appreciate it if you would resubmit explaining the error.鈥� The Appellant further states 鈥淭he previous owner lived in the mobile until his death in redacted and the garage was used as his workshop.鈥� This instruction between the Appellant and their architect would appear to be based on the information submitted above, with no additional evidence supporting the matter.

53. From the comments made by both parties and all the information submitted, it is my opinion that it has not been adequately proven that the garage was lawfully 鈥渋n-use鈥� for a continuous period within three years of the grant of planning permission on redacted and the 鈥渓awful use鈥� requirement of Schedule 1 of the CIL Regulations 2010 (as amended) has not therefore been met.

54. The GIA of the garage/workshop cannot therefore be off-set against the GIA of the proposed development for the purposes of calculating the CIL charge.

Calculation of CIL Liability

1. The CIL liability is thus as originally calculated by the CA:-

Minor Resi redacted

Proposed GIA redactedm2 @ 拢redacted/m2 index linked

= 拢redacted CIL Liability

Decision

56. On the basis of the evidence before me and having considered all the information submitted in respect of this matter, I therefore determine a CIL charge of 拢redacted (redacted) to be appropriate and this appeal is dismissed.

redacted MRICS
RICS Registered Valuer
Valuation Office Agency
10 April 2024