Court of Appeal Judgment on the Community Infrastructure Levy (CIL) - Gardiner v Hertsmere

The Court of Appeal has handed down (16 August 2022) judgment in the case of R oao (Gardiner) v Hertsmere BC & Secretary of State for Levelling Up, Housing and Communities [2022] EWCA Civ 1162 concerning the Community Infrastructure Levy Regulations 2010 (as amended).  Only the second Court of Appeal CIL decision, the case addressed the statutory interpretation about the exemption from liability to CIL for self-build housing developments under Regulations 54A and 54B.  The particular question was whether the self build exemption was available when planning permission is granted retrospectively for such development, under section 73A of the Town and Country Planning Act 1990.  The Court dismissed the appeal and upheld the decision of the High Court (EWHC 1875 -Nathan Gardiner v Hertsmere Borough Council [2021] EWHC 1875 (Admin)) that self build exemptions could not be applied retrospectively. 

The judgment was made by Sir Keith Lindblom, Senior President of the Tribunals, and unanimously agreed with by Edis LJ and William Davis LJ.  E³ Consulting Managing Director, Alun Oliver FRICS, said “it was clearly the correct decision based upon the CIL Regulations as drafted, albeit perhaps illustrating the poor drafting and inconsistency of how the CIL Regulations operate in the context of the realities (and complexities) of planning, property and construction – than the previously stated Parliamentary intent (since CIL Amendment Regulations 2014) that self builders should not suffer CIL by virtue of the mandatory exemptions”.

The judgment may also have potential impact on developments which might otherwise benefit from charitable relief or social housing relief, where retrospective planning permission has been granted.

The CIL Regulations are extremely complex and require careful and precise navigation to fulfil their requirements and avoid the many hazards along the way.  Taking timely and specialist advice is essential before work commences and we would suggest the earlier the better - for any new development - where the Local Planning Authority has adopted CIL across England or Wales.  It’s usually too late once a spade has gone into the ground, let alone where the development has been completed… albeit the point at which a project completes (necessary for retrospective permission) is another debate, for another day!