Community infrastructure levy: insights from recent appeals

Over the past year, CIL has generated a steady stream of decisions highlighting the pitfalls awaiting unwary developers. Caroline Stares distils the principal lessons from these decisions.

Commencement notice

A commencement notice must be submitted to the authority at least the day before the chargeable development begins. This is the case even if the development attracts no CIL liability due to relief; if it isn’t submitted, a surcharge will be payable, based on the CIL that would have been payable absent any relief (APP/R3650/L/25/3365788).

The commencement notice must use the form published by the secretary of state, which includes specifying the commencement date; stating “TBA” isn’t sufficient (APP/F1610/L/25/3358566). 

Submitting the notice is the developer’s responsibility. An authority’s failure to explain this requirement doesn’t excuse non-compliance (APP/ F1610/L/24/3355338). The notice must be submitted to the CIL collecting authority; engagement with the building control department is insufficient as these are separate regimes (APP/T5720/L/24/3355296).

Liability notices

Authorities must issue a liability notice as soon as practicable after the day on which planning permission first permits development. Delays of 14 months and five-and-a-half years failed this requirement (APP/J2210/L/25/3363569; APP/J4423/L/24/3355855).

A new owner was unaware of a liability notice as it wasn’t revealed in local search results, so didn’t serve a commencement notice or pay CIL. The surcharges were quashed as authorities must register liability notices as local land charges (APP/N5660/L/25/3362626).

A developer included postal and email addresses in the assumption of liability notice. Despite other correspondence having been sent by email, the authority sent the liability notice to the postal address. The notice wasn’t received as no building existed at the site, but the authority didn’t know as the notice wasn’t returned. The inspector concluded that the notice had been correctly served and upheld the surcharges (APP/J4423/L/24/3356244). 

Authorities must prove that the liability notice has been served. A notice appearing on a land register or public access system demonstrates that it was produced, not served. Without proof of delivery or postage, inspectors will not accept that service occurred (APP/J4423/L/24/3355855; APP/H5390/L/24/3351962).

Gross internal area calculations

CIL is calculated by reference to the  gross internal area of the chargeable development. As GIA is not defined in the CIL Regulations 2010, the RICS Code of Measuring Practice provides guidance. 

The Valuation Office Agency has confirmed that the following are excluded from the GIA: greenhouses, garden stores, fuel stores and the like in residential properties, including external bin stores and cattery outbuildings; external areas under entrance canopies; covered ways and fire escapes; and areas without permanent access (VOA appeals 1857931, 1858835, 1858698, 1877081, and 1874253). Whether covered parking is included depends on its physical configuration (appeals 1858698, 1874253, and 1877502). Party walls are included (appeal 185698). 

Where a planning condition expressly permits additional floor area (such as mezzanine accommodation up to a specified limit), that potential area must be included in the chargeable GIA, even if not shown on approved plans (appeal 1867342).

Authorities may issue revised liability notices if more accurate GIA measurements emerge post-permission, provided these are based on the approved plans. A fresh planning application isn’t required (appeal 1868691).

In-use deduction

The GIA of in-use buildings to be retained or demolished can be deducted from the chargeable area. A building is “in-use” where part of a relevant building has been in continuous lawful use for six months within three years before planning permission first permits the chargeable development. 

To be a "relevant building", it must be situated on the relevant land when planning permission first permits the chargeable development. Buildings demolished before the grant of retrospective permission cannot qualify (appeals 1857384, 1869847, and 1877887). Use of one part of a building cannot support a deduction for a different part where the chargeable development only relates to that different part (appeal 1854324). Temporary structures such as containers or caravans do not constitute "buildings" (appeal 1855702). 

Developers must provide sufficient evidence demonstrating lawful use before commencement; otherwise, the authority may deem the building not “in-use”. Actual use and degree of activity will be assessed; permitted use alone isn’t sufficient. Statutory declarations, leases, licences, undated photographs, or assertions of historic use are insufficient without corroborating evidence of active use such as utility bills, trading records, rental payments, or insurance certificates. Inconsistent documentation may render evidence insufficient (appeals 1855227, 1855702, 1857157, 1859480, 1870717, 1873237, 1874509, 1875822, 1874601, and 1867784).

Where a primary use has ceased with no intention to resume, ancillary uses cannot constitute lawful use (appeals 1862482, 1862483, 1862484, and 1875193). Buildings constructed contrary to planning permission cannot constitute relevant buildings in lawful use (appeal 1873657).

Where relevant buildings straddle multiple phases, the authority may deem the in-use GIA to be zero if the developer fails to provide scaled plans enabling accurate measurement and apportionment between phases (appeals 1865680, 1865689, 1865692, and 1865694).

Intended use deduction

The GIA of retained parts of relevant buildings can be deducted from the chargeable area where the intended use following completion can be carried on lawfully and permanently without further planning permission in that part the day before planning permission first permits the chargeable development. 

For development authorised by permitted development rights, planning permission first permits development when the authority receives a notice of chargeable development, which must be submitted before commencement. Where prior approval is required for the intended use, provided it is obtained before the authority receives the notice, such use of a relevant building benefits from the deduction (appeal 1867784). 

A retrospective permission can benefit from the deduction where, for example, the use of a residential extension was authorised by a previous permission even if subsequent alterations to that extension were unlawful (appeals 1853377, 1851158, 1853378, and 1851137). 

Exemptions

Self-build housing benefits from an exemption, but this may be withdrawn if a disqualifying event (such as a sale) occurs before the end of the clawback period, being three years from the date of the compliance certificate (APP/N5090/L/24/3357293). In R(on the application of Luck) v Bracknell Forest Borough Council [2025] EWHC 2984 (Admin); [2025] EGCS 187, the court held that a disqualifying event may occur before the clawback period begins and the authority has no discretion to waive CIL, even where completion becomes impossible after commencement. Developers must notify the authority of any disqualifying event within 14 days; without proof of postage or receipt, a surcharge may be imposed (APP/A3010/L/25/3365860).

As exemption claims must be submitted before development commences, retrospective permissions cannot benefit (APP/D0840/L/24/3352143). Self-build exemptions may be rescinded where a developer claims for multiple properties (appeal 1858130). 

Other key principles

• For a permission to constitute a phased permission for CIL purposes, it must expressly provide for development in phases with a specified sequence (appeals 1858486 and 1875193).
• Where an authority specifies residential rates by reference to Use Classes C3 and C4, this will not capture sui generis co-living and student accommodation, or self-catering accommodation ancillary to a sui generis use (appeals 1860926, 1857894, 1857923 and 1879378).
• For non-phased outline permissions, the indexation date is the year in which the permission was granted; for phases in phased outline permissions, it is the year in which the final reserved matters approval is granted for that phase (appeals 1860756, 1869907, 1870044, 1869923 and 1873247).
• Ongoing disputes with an authority regarding CIL liability do not suspend the payment deadline, unless agreed by the authority (APP/ M1520/L/24/3355234). 
• The six-year limitation period for actions for sums recoverable by statute (section 9 of the Limitation Act 1980) doesn’t apply to the issue of a CIL stop notice, as that constitutes an administrative act not an "action". However, the decision remains amenable to judicial review, and the authority must be satisfied that it is expedient to stop development until CIL has been paid (R(on the application of Jones) v Shropshire Council [2025] EWHC 365).

Authored by Caroline Stares, Senior Associate at CMS.

A previous version of this article was published in Estates Gazette.