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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R (oao Hourhope Ltd) v Shropshire Council  EWHC 518 (Admin) (02 March 2015)
Cite as:  WLR(D) 100,  EWHC 518 (Admin),  PTSR 933
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Bull Street, Birmingham B4 6DS
B e f o r e :
| R (oao Hourhope Ltd)
|- and -
Christopher Cant (instructed by the Head of Legal and Democratic Services) for the Defendant
Hearing dates: 7 January 2015
Crown Copyright ©
HHJ David Cooke:
The CIL regime and the demolition deduction
E= an amount equal to the aggregate of the gross internal areas of all buildings which –
(a) on the day planning permission first permits the chargeable development, are situated on the relevant land and in lawful use; and
(b) are to be demolished before completion of the chargeable development…
40(10) For the purposes of this regulation a building is in use if a part of that building has been in use for a continuous period of at least six months within the period of 12 months ending on the day planning permission first permits the chargeable development."
"40(7) E= the aggregate of the following
(i) the gross internal areas of parts of in-use buildings that are to be demolished before completion of the chargeable development …
40(11)… "in-use building" means a building which-
(i) is a relevant building, and
(ii) contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development …
"relevant building" means a building which is situated on the relevant land on the day planning permission first permits the chargeable development; …"
The disputed charge to CIL
"… Given the new regulations the question has to be considered against a date of 12 March, 2011: has the building been in lawful use during that time for a continuous period of six months? The use of the building for the purposes of the regulations was lawful and was use as a public house. That use was not abandoned prior to September 2011: the physical condition of the building remained as before: the length of time following the closure to the public was not long: there was no intervening years ago on and the intention of the owner (as indicated by the marketing) was that these continued. The presence of the furniture and fixtures is in and in practical terms, and consequently the benefit conferred by the regulations must be applied. "
i) The Red Lion traded as a public house until 6 May, 2011, when it closed for business.
ii) After that date, some at least of the furniture fixtures and fittings used in the public house business remained on site. These included, for instance, the bar taps for dispensing beer and optics for dispensing spirits, fridges in the kitchen, tables and chairs used in the restaurant area and office furniture in the manager's office.
iii) In addition, a Mr Venables, a director of the company which ran the public house, remained living on the premises in the manager's accommodation for a period. According to a letter he signed in May 2014, his initial intention had been to seek to resolve matters with the mortgagee, and he "continued to live at the property in order to safeguard the building and all of the contents including my possessions in anticipation of a possible reopening." No agreement was reached and, according to Mr Venables' letter he received one month's notice to vacate "during mid-August" which he complied with. It does not appear that this date can be accurate however since according to other documents the mortgagee was able to provide the keys to the property to its agents on 12 August, 2011 and obtained possession of the property no later than 22 August, 2011. It is accepted on the claimant's behalf that any occupation by Mr Venables ceased no later than 22 August, 2011 and accordingly even if that occupation would have been sufficient, it ended before the expiry of the six month period that the claimant needs to show.
iv) After Mr Venables left the property was marketed for sale on behalf of the mortgagee. Sales particulars were produced, with photographs taken either at the end of August or beginning of September which continued to show items such as the bar equipment, restaurant and office furniture in place.
The claimant's case
i) It is sufficient for the purposes of the regulations that a building has a use which is lawful for planning purposes, unless that use has been abandoned such that it could not be resumed without a grant, or further grant, of planning permission. The council's position is that the references in the regulations to a building being "in lawful use" mean that it is not sufficient that the building merely has a lawful use to which it could be put, but it must actually be being used for such a purpose.
ii) Alternatively, even though the public house ceased to trade on 6 May, 2011, the continued presence of Mr Venables for a period and of the furniture fixtures and fittings thereafter meant that building continued to be in lawful use, either because in the circumstances the use as a public house continued, or because the building was used for storage of the furniture fixtures and fittings, which was a lawful ancillary use of the premises whilst the public house trade was being carried on and which use continued thereafter, and continued to be lawful.
"Can existing floorspace be deducted from the chargeable floorspace?
In certain circumstances, buildings to be demolished or converted as part of a development may be eligible to be deducted from the chargeable area provided that they: …
2. On the day planning permission first of its the chargeable development, are situated on the relevant land … and in 'lawful use';…
4. Have been in use for a continuous period of at least six months within the period of 12 months ending on the day planning permission first permits the chargeable development.
For information: …
- a 'lawful use' is a use, operation or activity for which a building is used that is lawful for planning control purposes,
- within Shropshire, the term 'in use' for CIL purposes includes use of all or part of the building for any purpose, including storage, e.g. storage of agricultural, household or construction material…"
(emphasis in original)
This document was prepared prior to the introduction of the amended regulations in 2014, and accordingly refers to the 12 month period rather than the three-year period. It was subsequently withdrawn and amended, but not until after the grant of planning permission to the claimant. Mr Blackie submits that the publication of this document created a legitimate expectation that the regulations would be so construed as to entitle the claimant to a deduction by virtue of the continued storage of items on the premises being treated as a continuation of a lawful use.
Actual use or available use?
"KR = the agregate of the gross internal areas of the following-
(i) retained parts of in-use buildings, and
(ii) for 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 "
Continued use as a public house?
Use for storage?
Legitimate expectation- the online guidance note