In his latest column Andrew Fearn, a consultant with Knights PLC, Lincoln, explains issues surrounding CIL.

Those who have been involved in new developments will know all about the Community Infrastructure Levy (known, in short, as CIL).

But, for the less well-informed, it is a charge based on the net chargeable floor area adjusted by a figure calculated according to when the charge was introduced.

The Levy is used by the local authority to contribute towards infrastructure costs associated with schools and roads as well as improving existing facilities.

It is imposed in addition to any planning conditions and developer contributions arising from the grant of a planning consent under the provisions of a Section 106 agreement.

There are obviously two sides to the debate.

The developer will try to keep the costs of the development down and maintain the CIL at a low level whilst the council will seek to maximise its return in order to fund its community assets.

One of the critical factors in that calculation is the net chargeable floor area of the new development.

Usually, as CIL is not negotiable, there is little room for argument but where there is the redevelopment of an existing building, it becomes more interesting. In certain circumstances the internal area of an existing building can be taken into account in calculating the chargeable amount.

One such instance was the subject of an appeal at the end of last year.

An existing agricultural store was being converted to two dwellings and the issue arose as to whether the existing building had been in use for a continuous period of at least 6 months in the three years preceding the grant of the planning permission.

In these circumstances the CIL is reduced by taking into account the gross internal area of the existing building.

The appeal centred on the issue of whether the agriculture store had actually been in use during the requisite period of 6 months.

Photographs had been produced as evidence of the use but it was argued that still photographs are but a reflection of an instance in time and not evidence of continual use.

It is a difficult evidential area because it is unlikely that there will be video recordings and it is hard to know what other support there might be to confirm the use.

Happily, common sense prevailed and, using all the evidence available, the previous use of the store was accepted.

The upshot was that the gross internal area was netted off against the figure for the store and the amount of CIL charged to the land owner was significantly reduced. A good result for the applicant!

As ever, these cases are particular to their facts but the lessons for land owners and potential developers are clear to see.