R (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council & Anor [2016] EWHC 448 (Admin)
The point in plain English: CIL liability follows the statutory scheme and the planning permission actually granted. A council cannot simply combine two separate permissions and treat them as one development because that would produce more CIL.
What happened
Orbital Shopping Park submitted one application for a large internal retail mezzanine and a separate application for external alterations to the same Next store. The mezzanine permission fell within the CIL exclusion for internal works requiring permission only because of section 55(2A), while the external works created no additional floorspace.
Swindon Council nevertheless treated the two permissions together and issued a CIL Liability Notice and Demand Notice.
What the High Court decided
Patterson J allowed the claim. Each planning permission had to be interpreted within its own four corners. There was no statutory power allowing the collecting authority to merge the two separate permissions into one simply because they were commercially connected or deliberately structured to avoid a CIL charge.
The court rejected the argument that this amounted to unlawful manipulation. If the legislation permits a particular result, it is for Parliament to change the legislation rather than for a collecting authority to create a different charging rule.
Why Orbital matters
The case is an important reminder that CIL is a statutory charge and must be imposed according to the regulations actually enacted. Regulation 6(1)(c) still contains the relevant exclusion for certain internal works, but the current regulations should always be checked against the exact permission and development proposed.
See Planning Geek’s Community Infrastructure Levy guidance for the current rules.
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