Introduction
The Community Infrastructure Levy has never been short of critics, nor complications. It briefly looked as though its time was up, with the proposed new Infrastructure Levy, promising a cleaner, simpler system. However, the IL was scrapped when the current government came to power, CIL survived and it remains firmly embedded in the planning landscape. Understanding and navigating the CIL regime competently is therefore an essential skill for planning and property practitioners. As such, we will set out a series of articles looking at the basics of CIL, recent appeal cases, pitfalls and how to avoid them.
Read the previous article in our series here: CIL and Prior Approval.
When is CIL triggered
A sometimes underappreciated aspect of CIL amongst developers and purchasers is that it is the commencement of development, not the grant of planning permission or the receipt of a Liability Notice, that triggers the obligation to pay the levy. Although the grant of a chargeable planning permission sets the CIL regime in motion (causing a Liability Notice to be issued and a local land charge to be registered), no CIL is actually payable unless and until the authorised development is commenced. Neither an unimplemented planning permission nor a Liability Notice, of themselves, result in the triggering of any requirement to pay any CIL.
For these purposes, "commencement" is given a precise statutory meaning: development is treated as commencing when any "material operation" begins to be carried out on the relevant land, with "material operation" bearing the same meaning as in section 56(4) of the Town and Country Planning Act 1990. Material operations include any construction work in the course of erecting a building, any work of demolition, the digging of a trench for foundations, and the laying of underground mains or pipes - even very modest physical works will suffice. Developers must therefore treat commencement as a deliberate, carefully considered act. Any material operation may, as a matter of fact, constitute commencement (irrespective of intention) and irrevocably trigger the full CIL liability. A number of recent appeal decisions continue to demonstrate the strict nature of the CIL Regulations in this respect:
- Appeal decision APP/H1705/L/23/3316747 - A vehicle access had been created. The appellant contended it was temporary, constructed for renovation works, and did not form part of the chargeable development. The inspector stated that "the CIL regime is not concerned with whether or not a development has begun with other purposes in mind, it is only concerned with whether it has commenced as a matter of fact." As "new vehicle entrance" formed part of what was permitted, the works resulted in commencement. The appellant also argued the works were permitted development, but the inspector noted that planning permission for CIL purposes includes "general consent."
- Appeal decision APP/R0335/L/23/3323785 - The appellants conceded demolition had occurred but claimed it was undertaken solely for safety reasons due to dilapidated structures, with no intention of implementing the planning permission. The inspector explained that the trigger for CIL was a material operation under section 56(4) of TCPA 1990, which includes "any work of demolition of a building." While demolition may have been for safety, it caused commencement as it formed part of the planning permission. There was nothing in the Regulations requiring commencement to be intentional or to progress to implementation.
- Appeal decision APP/K0940/L/23/3322179 - The appellant did not dispute failing to submit a commencement notice, blaming personal problems and ill health. The inspector noted that once the breach occurred, full CIL became payable. The appellant stated she had no intention of proceeding, but the Regulations are not concerned with whether development would be proceeded with - only whether it had commenced.
When is CIL Actually Payable?
Provided that a valid Assumption of Liability Notice and Commencement Notice is served (see below), CIL is payable within 60 days of the commencement date. If the charging authority has a published instalment policy, payment may be spread over a longer period in accordance with that policy. Instalment policies vary considerably between authorities with payments variously being required in tranches or differing amounts and over differing time periods (often up to a year or more) depending on the size of the liability. For phased developments (where the planning permission specifically states that it is phased) , each phase is treated as a separate chargeable development, so CIL for each phase becomes payable only when that phase is commenced, allowing the overall liability to be spread across the life of the project rather than crystallising in a single sum at the outset.
Commencement Notices
Before commencing development (and having served an Assumption of Liability Notice), a Commencement Notice must be served on the local authority no later than the day before commencement, whether development is authorised by a grant of planning permission (or prior approval). Non-compliance triggers the following consequences:
- Firstly, the CIL liability becomes due to be paid immediately, rather than within 60 days;
- Secondly, instalment arrangements are lost. For a development with a substantial liability which could otherwise be payable in instalments, the cash-flow impact could be severe.
- Thirdly, a mandatory surcharge - the lower of £2,500 or 20% of CIL liability. Any unpaid late payment surcharges cascade (5% or £200, whichever is greater), after 30 days, again at six and twelve months and interest also accrues. The surcharge cannot be mitigated by adverse financial consequences, lack of understanding of CIL, or discussions with the planning officer. An authority's failure to explain the requirement does not excuse non-compliance (APP/F1610/L/24/3355338).
Prior to 1 September 2019, failure to submit a commencement notice automatically caused loss of any exemptions or reliefs. This is no longer the case, but all other consequences (loss of instalments, immediate full liability, cascading surcharges and interest payments) remain in force.
Informal communication of commencement is not compliance with the requirement for service of a Commencement Notice - telephone or email notification, notification of commencement under an associated s.106 agreement, demolition notices under building regulations, or engagement with building control are all insufficient - CIL is a separate regime. Developers should retain evidence of service and the onus is on the developer to show the notice was submitted.
Failure to serve a CIL Commencement Notice
In R (Shropshire Council) v Secretary of State [2019] EWHC 16 (Admin), Mr Jones, a self-builder, obtained planning permission for a detached home with a CIL liability of £36,861.43, subject to the self-build exemption. He emailed the Council as required under a section 106 agreement but did not serve the commencement notice in the prescribed Form 6. The Council issued a demand for full CIL. A planning inspector allowed the appeal, holding the email had "the same effect as a commencement notice," but the High Court quashed that decision: the Regulations had to be complied with and made perfectly clear the consequences of failure. Subsequently, in Lee Jones v Shropshire Council [2022], the court allowed Mr Jones's appeal against the magistrates' court liability order. The Council was then unable to apply for a fresh order as more than six years had passed. However, the Council served a stop notice halting Mr Jones's unfinished development. In Jones v Shropshire Council [2025], the High Court held that a CIL stop notice is an administrative act, not an "action" within section 9(1) of the Limitation Act 1980, and is therefore not subject to the six-year limitation period. More than a decade on, Mr Jones's development remains subject to CIL enforcement. The saga demonstrates the strict and formalistic requirements of the regime and the durability of a collecting authority's enforcement powers.
A footnote to the Jones saga is that MHCLG wrote to all CIL charging authorities in June 2026, reminding councils that they retain "a degree of discretion" over enforcement steps and timing, and should consider "what is reasonable and proportionate in any given case." Councils were also reminded that they may make ex gratia payments from general funds in exceptional cases where CIL has already been paid (though one might be forgiven for doubting that cash-strapped authorities will rush to reimburse from their own coffers sums they were perfectly entitled to collect). The letter's scope is limited and only directed at the enforcement of CIL against householders and self-builders, not developers generally, and it does not change the law. Commercial developers should not expect any softening of approach as a result. For the individuals it does address, it signals a political expectation of restraint, but whether that expectation translates into changed behaviour on the ground remains to be seen.
Overall, the CIL regime remains strict and formalistic and developers should try to ensure that all prescribed procedures are followed precisely. Fladgate can assist with any queries you may have on this and the CIL Regulations generally.
