Self-builder loses High Court legal challenge over refusal of CIL exemption

The self-build exemption from the community infrastructure levy (CIL) does not apply where a development lacks planning permission, the High Court has found.

In Gardiner v Hertsmere Borough Council [2021] EWHC 1875 (Admin) Mrs Justice Thornton dismissed a case brought by resident Nathan Gardiner against Hertsmere Borough Council.

Mr Gardiner is a self-builder who had planning permission to partially demolish and extend his bungalow in Radlett. CIL was not payable as Hertsmere exempts this.

Planning officers visited and considered that the works undertaken had gone beyond those authorised.

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Mr Gardiner submitted a new planning application to regularise the demolition works and allow the subsequent rebuild now required of the house - as opposed to only an extension. Planning permission was subsequently granted, part-retrospectively, under s.73A of the Town and Country Planning Act 1990 for the demolition and the erection of a new detached six-bed dwelling.

This still attracted the exemption, Mr Gardiner argued, as “on an ordinary common sense reading of the CIL Regulations the self-build exemption is available for development with retrospective planning permission”.

Dismissing the case, the judge said Mr Gardiner “undertook development for which he had no planning permission, and which was therefore unauthorised, and did not notify [Hertsmere] of the unauthorised works.

“He was not granted an exemption which he then lost by virtue of a relatively minor procedural indiscretion.”

Mark Smulian