CIL guidance on continuous lawful use

The CIL regulations allow for the deduction of existing and/or demolished floorspace when calculating the CIL charge.

Please note that this floorspace is not considered when determining whether the development is CIL liable or not.

The existing and/or demolished floorspace can only be considered if the existing building has been ‘in continuous lawful use’ which means

It is a building which is situated on the relevant land on the day planning permission first permits the chargeable development
It 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.

It is the applicant’s responsibility to submit floorplans and provide evidence to demonstrate continuous lawful use. We will not consider the existing floorspace as deductible floorspace unless the applicant submits evidence to demonstrate the continuous lawful use to the Council’s satisfaction.

If your planning permission relates to an extension to an existing council-taxable dwelling (which is physically attached to the main building and within its existing curtilage) we will not require evidence to be submitted (we may still require floorplans). Evidence will be required in all other cases. For avoidance of doubt, plans and evidence will still need to be submitted in respect of outbuildings within the residential curtilage.

If we have already issued you with a Liability Notice before you submit your evidence of continuous lawful use, you will need to request a review of the chargeable amount under CIL Regulation 113. This must be done within 28 days of us issuing the Liability Notice and we have 14 days to consider your request.

Below you can find a list of evidence that can be submitted:

Copies of leases
Utility bills for the 6-month period showing consumption commensurate with the use
Business rate or council tax bills
Confirmation from a letting agent or solicitor advising of the period of occupancy
A statutory declaration or affidavit (see note below)

Photographs are not on the list of information to evidence use because they only evidence that the building was in use at the moment in time that the photograph was taken. However, they can support other evidence, providing they are digitally date stamped.

Note that the Council requires floorplans of the existing building to measure the gross internal area (GIA) of the existing and/or demolished floorspace. Without sufficiently accurate floorplans no reduction can be given.

Statutory declarations or affidavits

These are written statements that are sworn or affirmed to be true by a solicitor. A solicitor will charge a small fee to swear or affirm a document. Swearing or affirming a document is a serious matter, as you are stating that the entire contents of the document are true. If it is later discovered that any part of that statement is false, you could be held in contempt of court and sent to prison.

A statutory declaration must:

Contain a declaration of truth which identifies the declarant and their relationship to the property;
Identify the address of the planning permission/ site;
State the period during which the building was/is occupied or used;
Explain the nature of the use (e.g. dwellinghouse, storage ancillary to a dwelling, agricultural building, commercial unit);
Confirm the facts are true to the declarant's knowledge
Be signed and dated by you as a declarant; and
Be formally sworn or affirmed before a solicitor or commissioner for oaths.