Russell-Cooke planning team shares recent success with Community Infrastructure Levy appeal
Russell-Cooke's real-estate client recently acquired a property with the benefit of prior approval for change of use from office to residential (pursuant to the Class MA permitted development right).
The local authority issued a CIL Liability Notice which identified a sizeable CIL charge payable in connection with the proposed residential conversion. Alex Ground and Annabelle Lee assisted with an appeal of the CIL Liability Notice pursuant to regulation 114 of the CIL Regulations. In a decision dated 24 October 2025, the Valuation Office Agency VOA determined that the chargeable amount had been incorrectly calculated and that it should instead be nil.
Regulation 40 of the CIL Regulations provides that a collecting authority must calculate the amount of CIL payable in respect of a chargeable development in accordance with the provisions of schedule 1 of the CIL Regulations. The relevant formula includes statutory deductions which, if applicable, have the effect of reducing the amount of CIL that is otherwise payable. The local authority in this case did not consider that either of the statutory deductions were available when calculating the chargeable amount (no CIL exemption was applicable in this case). The two statutory deductions are for:
- retained parts of in-use buildings (KRi deduction) and
- other relevant buildings, retained parts where the intended use following completion of the chargeable development is a use that is able to be carried on lawfully and permanently without further planning permission in that part on the day before planning permission first permits the chargeable development (KRii deduction).
Success on appeal
Alex and Annabelle successfully argued that KRii deduction was available and that the chargeable amount in the CIL Liability Notice should therefore be nil.
The case was argued that the KRii deduction applied in this case because it was the Class MA permitted development right (enabling the residential conversion) that granted “planning permission” and not the grant of prior approval. The case law, most notably Pressland v Hammersmith and Fulham [2016] EQHC 1763 (Admin), supported the argument that the need for prior approval is, in essence, no different from the need to discharge a condition. It is not the same as requiring “further planning permission”. The case was further made that even if a grant of prior approval was required to satisfy the requirement that ‘no further planning permission was required’, the relevant date at which this was required was the “day before planning permission first permits the chargeable development” and, in the case of prior approvals, this is the day on which a notice of chargeable development is received by the collecting authority. In this case, as will nearly always be the case with such prior approvals, the prior approval was granted before the notice of chargeable development was given.
The VOA agreed that, applying the CIL Regulations as they are written and following the case law, the KRii deduction was therefore available and a reduction to the chargeable amount warranted on the basis that at the day before the chargeable development was first authorised (i.e. the day before the notice of chargeable development) the planning permission had already been granted. The VOA therefore determined the chargeable amount to be nil. The VOA did not need to determine whether or not the permitted development right itself (opposed to the grant of prior approval) was sufficient for a use to be carried on without further planning permission.
Whilst often the KRi deduction (in-use building deduction) will be available, where the building has not been in-use for the relevant time period, this other statutory deduction (KRii deduction) is important to consider in particular for change of use prior approval schemes.
The Russell-Cooke planning team regularly advises on CIL issues including procedures, quantum, exemptions and relief and enforcement.
About Alex and Annabelle
Alex Ground is a partner in the real estate, planning and construction team, advising on all aspects of planning, highways and compulsory purchase including planning applications, appeals, negotiating s106 agreements, challenges and enforcement.
Annabelle Lee is an associate, also in the real estate, planning and construction team, advising clients on a broad range of environmental and planning law issues.
Get in touch
If you would like to speak with a member of the team you can contact our real estate planning and construction solicitors; Holborn office (Email Holborn) +44 (0)20 3826 7523; Kingston office (Email Kingston) +44 (0)20 3826 7518; Putney office (Email Putney) +44 (0)20 3826 7518 or complete our form.
