Self-build series Part 3: Self-build pitfalls fixed, but will not remedy existing injustices

The earlier blogs in this Series have explored the pitfalls in the CIL regulations in connection with the self-build exemption (SBE). 

After much lobbying the Government appears finally to have listened.  The Government’s response on the Developer Contributions consultation confirms that the proposed amendments to the CIL regulations (that were announced as part of the Government’s Developer Contributions reform consultation) will be taken forward to make the SBE process a little easier, fairer and more forgiving. 

The draft regulations (laid before the House of Commons to come into force on 1 September 2019) ensure the penalties that result from a self-builder failing to submit a commencement notice before starting development will be softened. Instead of losing the SBE entirely, the developer will only be required to pay a mandatory surcharge equal to the lesser of £2,500 or 20% of the CIL that would apply to the development if not for the exemption (i.e. the penalty is capped at £2,500)[1], and confirm that the SBE to be carried over to an amended permission (i.e. a s73 permission), even if the development has commenced under the original permission[2].

This will not apply to wholly new applications, so careful thought still needs to be given to the potential CIL consequences if a new application is made after works have commenced under the original permission.

In addition to the changes for self-builders, the proposed amendments will also help to correct many of the pitfalls that plague the other CIL exemptions including:

  • the failure to give the commencement notice before starting development will no longer (from 1 September 2019 assuming the amendment regulations take effect) result in the loss of charitable relief or social housing relief exemption; and
  • the failure to give the commencement notice before starting development will no longer result in the loss of the exemption for residential annexes and residential extensions (from 1 September 2019 assuming the amendment regulations take effect).

However, as for the self-build exemption, the failure to give the commencement notice in advance of starting development will for each of the abovementioned scenarios give rise to a mandatory surcharge of no more than £2,500 (although the draft amendment regulations do not explicitly refer to residential extensions being subject to this penalty).

Unfortunately, the proposed amendments are not to have retrospective effect, so will not address or undo any previous injustices.  Part 4 of this Series will address this and what more is needed.


[1] Regulation 6 of the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019

[2] Regulation 7 of Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 proposes a new regulation 58ZA


Self-build series Part 2: Options for retrofitting the exemption to future permissions

Following on from Part 1 of the Self-Build series, the precarious position for future self-builders should be improved later this year, given the Government’s response to their Developer Contributions consultation.  However, the proposed amendments will only come into effect from 1 September 2019, arriving too late to fix the predicament of many existing self-builders.

Therefore, if works have started but deviated from what was originally approved and a s73 application or new application is made (instead of a s96a application) but not determined, to try to avoid a CIL liability under the new permission the self-build should consider and discuss one or more of the following options with the LPA:

Option 1 – Agree to extend the determination date for the s73 application until after 1 September 2019 when the proposed amendments have taken effect to allow a transfer of the self-build exemption. 

Option 2 – Agree that commencement under the original permission does not disqualify the new permission from the self-build exemption.

It is not uncommon for LPAs to claim that commencement under the original permission constitutes commencement for the purposes of the new permission and that this disqualifies the new permission from the self-build exemption.  Whether or not the LPAs position is legally correct depends on how far advanced the works are under the original permission, as there will need to be a material operation that could be undertaken as part of the new permission to implement it. If the LPA can be convinced that that works have not commenced for the purposes of the new permission and that they are still capable of granting the self-build exemption for it, the self-builder ought to (as soon as possible and before the new application is determined):

  1. submit an application for the self-build exemption;
  2. cease development under the original permission in advance of the new permission being granted, and not recommence development under the new permission until:
    • the self build exemption has been granted; and
    • a completed assumption of liability notice and commencement notice is submitted to the LPA for the new permission (noting a future commencement date);
  3. document their development activities as clearly as possible (i.e. document/photograph when and where the works stopped on site, what works were the material operation under the new permission, obtain written statements from contractors, etc.) so this evidence can be provided to a LPA, if needed to corroborate their position. 

Option 3 – If the LPA will not agree that commencement under the original permission does not disqualify the new permission from the self-build exemption

  1. write to the LPA to ask that the s73 application be determined as a s73A application, with the self-build exemption to be granted on the same day as the permission. If this is not agreed by the LPA or the application is not a s73 application, the application should be withdrawn and a new application submitted as a s73A application;
  2. submit an application for the self-build exemption in advance of the application being granted permission; and
  3. submit with the self-build exemption application a completed assumption of liability notice and commencement notice which states that the date of commencement is the date of the grant of the new permission and the self-build exemption.

All of the options carry large risk and require the cooperation/‘blessing’ of the LPA. Option 1 is the preferred approach as it carries the least risk and should be the easiest to secure LPA agreement to.

If a self-builder has made a new application and is unable to agree one of the above approaches with a LPA, quickly, it should consider withdrawing its application before it is granted and the potential CIL liability is crystallised. 

Given the Government’s response to the Developer Contributions consultation, it is unlikely that a LPA would seek to take enforcement action where a self-builder withdrew or delayed the making of their s73 application, on the understanding that the self-builder would submit a s73 application as soon as the proposed amendments to the CIL regulations take effect. 

The proposed changes to the CIL regulations do not relate to s73A applications. Therefore, it is critical that the LPA is comfortable that a s73 and not a s73A application can be used to correct works deviating on site from what was originally approved. This will be more of an issue for those s73 applications that are made late in the development process and there is very little work remaining. 

Part 3 and 4 of this Series will address the Government’s response to reforming developer contributions and the changes that will be made to the CIL regulations to help make the self-build exemption process a little easier, fairer and more forgiving in the future. 

Until at least 1 September 2019, self-builders need to remain alert to the risks outlined in Parts 1 and 2 of this Self-Build series.

Self Build series Part 1

We regularly get CIL self-build enquiries following our blog. Sadly, more often than not the request for advice comes after works have commenced (often without a commencement notice having been given) or a subsequent application has been made at the behest of local authorities (LPAs). 

Here are some common risks with the self-build exemption:

1. A self-build exemption does not, at present, transfer to a related application (i.e. a s73 application or a new application for substantially the same development). This means that:

a. a new application for the self-build exemption needs to also be made for the subsequent application. If works have not commenced under the original application then this is a straight-forward repeat of the same process for the original application (if not see 2 below);

b. the self-build exemption must be obtained and a commencement notice submitted in connection with the new permission before starting any work on the site.

If the above steps are not complied with strictly, the right to claim the self-build exemption in connection with the revised/new permission is likely to be lost forever and full CIL will be payable in connection with it.

2. Where works have started but deviated from what was originally approved, a LPA will often request that the self-builder submit a new application (s73 or new application) to regularise the works. It is critical that a self-builder does not follow the LPA’s request blindly and submit a new application (s73 or new application) without seeking legal advice first because:

a. a new application (s73 or new application) means a new permission and chargeable development, which carries new CIL consequences;

b. a new application (s73 or new application) is different to an amendment under s96a which simply amends the existing permission by, for example, the substitution of new plans. An application under s96a is the only safe route for regularising the works on site without jeopardising the existing self-build exemption.

If the change is not material and is only required to regularise the position, then the LPA should not resist a s96a application, especially after the self-build position is explained to them.  Even if the LPA will not accept the justification for a s96a application a self-builder should refuse to comply with their request until seeking legal advice to confirm it will not open them up to an unexpected CIL liability that could be in the tens of thousands.

Part 2 of this Series will consider some of the options that could be considered if the second scenario above arises and the LPA will not accept a s96a application.

The Rosewell Review

Reform of the planning appeal procedure and the inquiry process in particular is overdue. The publication of the Independent Review of Planning Appeal Inquiries or, as it is more commonly known, ‘The Rosewell Review’ earlier this year is timely. We look at the main objectives of the review and how the key recommendations seek to achieve those objectives.

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This article was first published in Property Law Journal (June 2019) and is also available at www.lawjournals.co.uk.

Call In Blitz Offers Black Hole for London Delivery

The Mayor of London and the Government are looking to London densification to avoid moving, extending and reshaping London’s Green Belt as part of a wider regional strategy. The draft London Plan rejects ‘growth at any cost’ and sets out to deliver a step change in quality, quantity, affordability and delivery. At the same time, London’s local political landscape has been through a painful evolution – in terms of stability, predictability and players.  Reimagining density beyond single plots and tall buildings is work in progress, particularly where so few Local Plans make tested, masterplanned, allocations. Debates rage around density, daylight/sunlight and the meaning of ‘tall’.

Event Horizon

London development is facing a tough time living up to all that.  Intervention by the Mayor of London to move local debates along has been slower than anticipated. Having picked up pace this year, delivery is now being sucked into the black hole of Call In by the Secretary of State. 

Big Bang

Until 2019, the SoS had only Called In three London schemes in nine years.  An unprecedented surge leaves that at five in five months (Newcombe House, Citroen Garage, Albany Riverside, Vauxhall Gyratory * and Camberwell Industrial Estate* schemes).  Two of those were snatched from the Mayor of London’s own ‘called in’ jurisdiction.

That is all the more remarkable given that on average there were – nationally – only 10 Call Ins a year 2013-2018 (Rosewell Review) and 15 in 2017/18.

Escape Velocity

Call In statistics suggest that this will profoundly affect delivery:

  • 60% of Called In schemes tend to be approved (Rosewell Review) and 87% of SoS decisions since 2012 have followed the Inspector recommendation (according to Ministerial statements). 
    That is higher than the 47% approval rate for Recovered appeals, but bear in mind that the local authority was in each case going to locally approve every Call In scheme.
  • Call-Ins are taking between 8 to 35 months to determine. The average is 11.5 months (despite an average time from Inquiry start to Inspector recommendation of 3 months).
  • 30% of Called In schemes are withdrawn, but it is the 60% of that remainder where the ultimate grant of permission is therefore being significantly delayed.

Whether the market is rising or falling, that is a long time to wait. Unsurprising, then, that the Rosewell Review recommendation #17 seeks to “minimise the number of cases that need to be decided by the Secretary of State” by encouraging MHCLG to “keep their approach to the recovery of appeals and call-in applications under review“.  A step back would be progress.


* reportedly at the time of writing

Planning for an ageing population

The housing shortage and the inability of young people to get onto the property ladder, particularly in the south-east of England, is a near-constant media headline. But what about the needs of older people and the mounting undersupply? Where is the build-to-rent style government support that seeks to incentivise older people’s housing and give the older generation the range and quality of accommodation that they need in retirement?

We look at how planning law and policy are affecting the delivery of homes for older people and whether more can be done to accelerate extra care housing.

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This article was first published in Property Law Journal (May 2019) and is also available at www.lawjournals.co.uk.

Residential first for Neighbourhood Development Orders

Back in 2013, we highlighted the first Neighbourhood Development Order (NDO) – made to permit specified development without further permission – under the Localism Act 2011 regime, in Cockermouth.  In the five years since, however, only two other NDOs have been made (and the Cockermouth NDO expired in 2017).

Following that hiatus, the first NDO to authorise residential development has now been made. Kettering Borough Council made the Broughton Neighbourhood Development Order, along with the Broughton Neighbourhood Plan, on 17 October 2018. The NDO, approved by a 93% “yes” vote at the September 2018 referendum, permits the redevelopment of a BT exchange to provide between 5 and 7 dwellings, each with one or two bedrooms, aimed at younger people, single occupancy or older people downsizing.  The NDO identifies the site as a valuable strategic site, to deliver smaller properties to meet local needs, replacing a currently unattractive building adjacent to a conservation area.   

Previous NDOs permitted changes of use, and works to shop fronts and windows in Cockermouth, which has now expired, and the reinstatement and extension of a single dwelling in the Yorkshire Dales.

Brought forward alongside a Neighbourhood Plan, the Broughton NDO is a sensible step for the community in encouraging the type of development they wish to see when the site comes forward for redevelopment, alongside an allocation in the neighbourhood plan.  It remains to be seen whether this will prove to be a sufficient incentive for this development to come forward within the lifespan of the NDO.

It also highlights the very limited number of communities who have taken forward the opportunity to develop NDOs.  As with Neighbourhood Plans, the time and expertise involved in preparing an NDO is considerable – the Broughton neighbourhood group first applied for designation in 2013.  While the Localism Act has provided opportunities for communities to have a greater say in the development of their local area, the practical difficulties limit the opportunities for communities to take forward those opportunities.  Given limited Parliamentary time available, it seems unlikely that this will be resolved, notwithstanding the continuing political lipservice to localism.    

Assets of Community Value – no horseplay, for now

Back in 2016, we commented on the first  Asset of Community Value (ACV) case to reach the Upper Tribunal.  The case concerned green belt land included in the 2009 Strategic Housing Land Availability Assessment as suitable for 110 homes.  It had been used informally by the local community for 40 years, and was listed as an ACV in 2014.  As a result, the land became subject to the ‘Community Right to Bid’ restrictions and the ACV status became relevant to planning decisions.  Banner Homes requested a review of the listing decision and then appealed to the First Tier Tribunal and later the Upper Tribunal, all unsuccessfully. 

Since then, planning permission has been refused twice (for a change of use to the keeping of a horse and for construction of a stable block), with those refusals upheld on appeal on both occasions.  Most recently, in January this year, St Albans City and District Council’s planning committee again refused an application for change of use to horse paddock, contrary to advice from officers.  However, the reason for refusal was that the site is located in the metropolitan green belt, and although “the impact on openness would be small, it is not demonstrated that very special circumstances exist”.  The Committee Report considered the land’s ACV status, but concluded that the development proposal was not inconsistent with that status, as local people could still use the footpaths, and would have the opportunity to make a bid to purchase the land in the event of a sale. This is rather different from the local intent behind the ACV listing – and the rationale for the Court of Appeal’s decision to uphold it – on the basis that the community use of the field beyond the footpaths could restart despite being fenced off (because the green belt status of the land made any alternative permission/ use unlikely).

The land is clearly very important to local people, but while its ACV status has prevented the land coming forward for development, it is worth noting that it has not been determinative in the planning decisions (nor more influential than the underlying green belt status).  The current position therefore perhaps demonstrates the impact of a well organised community group, and supportive planning committee members, alongside the ACV regime itself, in dealing with planning applications on ACV land.   

The land is being promoted for 160 homes (including 50% affordable homes) as part of the Local Plan process.  The expiry of the 2014 ACV listing later this year is likely to tigger a re-consideration of the question of whether there is a realistic prospect that the wider field could be used by the community in the near future.

Real estate and public procurement

Those who are involved with public sector regeneration and development projects will be interested to learn about the important developments concerning the interface between public procurement law and property law, as explored in the Faraday Court of Appeal judgment (Faraday Development Ltd v West Berkshire Council [2018]).

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This article was first published in Property Law Journal (March 2019) and is also available at www.lawjournals.co.uk

Allotments and their protection

The housing shortage and housing affordability, particularly in the South East of England, is a near-constant media headline. Building on its manifesto pledge, in its Autumn 2017 Budget, the government announced its ambition to deliver 300,000 new homes a year by the mid-2020s. We examine the vital role that allotments play in creating communities of the future.

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This article was first published in Property Law Journal (March 2019) and is also available at www.lawjournals.co.uk.