The recent judgement in Oval Estates (St Peter’s) Ltd, R (On the Application Of) v Bath & North East Somerset Council  EWHC 457 (Admin) has provided some useful guidance in respect of Community Infrastructure Levy (CIL) phasing payment strategies. It concluded that it is not possible for an un-phased planning permission to be changed into a phased planning permission for the purposes of calculating CIL liability.
CIL is payable on commencement of a chargeable development. Where planning permission authorises development in phases, each phase may be deemed as a separate chargeable development effectively helping cash flow for developers.
Oval’s March 2016 outline planning permission was not phased. In April 2017, a reserved matters’ approval plan list approved a proposed phasing plan illustrating three phases of development. Shortly thereafter, Oval submitted to the collecting authority an assumption of CIL liability form and advised that the development would be phased and therefore the payments would be staggered. The authority disagreed. On 15 October 2018, Oval (keen to adhere to its development finance conditions) commenced the development. Just prior to this, however, Oval sought a non-material amendment under Section 96A of the 1990 Act to redraw the boundaries of phase 1 and phase 2; this was approved in February 2019 by which point the development was well underway.
The High Court held that whilst changing the planning permission from an un-phased planning permission to a phased planning permission was non-material, it was still a change and it came months too late. Had Oval not commenced the development, section 96A could have been used to allow for phasing and phased CIL payments. If phasing is to be introduced and commencement has already started, such modification is permitted but only under section 73 of the 1990 Act.
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