Amendments made to the CIL regulations in 2014 changed the qualifying test for offsetting the floorspace of existing buildings against CIL liabilities for new development. During the three years before the time that the planning permission first permits development (the "start date"), part of the existing building must have been in lawful use for a continuous six month period to qualify. Uses under a temporary planning permission will not count.
The "start date" for a simple detailed planning permission is the date the planning permission is granted; and for a simple outline permission it is the date of the final approval of reserved matters. The position is more complex in relation to phased permissions, where:
• the start date for any outline phase is the date of final approval of the last reserved matter associated with that phase or, if agreed with the collecting authority before development commences, the date final approval is given under any pre-commencement condition; and
• the start date for any other phase is the date final approval is given under any pre-commencement condition associated with that phase or, where there are no such pre-commencement conditions, the date planning permission is granted.
Note that a building must still be situated on the land on the start date in order for any floorspace to be offset. This means that demolition works in advance of the start date could have serious financial consequences and should not be carried out before considering the potential impact on CIL liability.
For more information please contact Ben Hazenberg, Lucy Morton or Matthew White at Herbert Smith Freehills.
Lucy MortonProfessional support lawyer, Planning, London
+44 20 7466 2626