Decision

CIL Appeal 1861653 and 1861755 – 16 Apr 25 (Accessible version)

Published 15 October 2025

Appeal Decision

By **redacted ** MRICS FAAV

an Appointed Person under the Community Infrastructure Levy Regulations 2010

(as amended)

Valuation Office Agency (DVS)
Wycliffe House
Green Lane
Durham
DH1 3UW

E-mail: redacted @voa.gov.uk

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Appeal Ref: 1861755 and 1861653

Address : redacted

Proposed Development:

1861755 – Application No: redacted. Prior Approval - Change of Use from Class E (Office) to Class C3 (Dwellings) on the first floor providing 7 self-contained units.

1861653 – Application No:redacted. Prior Approval - Change of Use from Class E (Office) to Class C3 (Dwellings) on the second to fifth floors providing 27 self-contained units.

Planning Permission details: Granted by redacted .  Application redacted Decision issued redacted .

Application redacted Decision issued redacted  .

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Decision

I determine that the Community Infrastructure Levy (CIL) payable in this case should be £redacted  (redacted) for application redacted and £redacted  (redacted) for application redacted  and hereby dismiss these appeals.

Reasons

1. I have considered all the submissions made by the appellant’s agent, redacted  (acting on behalf of the Appellant, redacted), and the submissions made by the Collecting Authority (CA), redacted.

In particular, I have considered the information and opinions presented in the following documents: -

a) The two CIL Appeal forms both dated redacted.

b) Grant of Planning Permissions; redacted granted redacted and redacted granted redacted  .

c) The CIL Liability Notices (redacted) dated redacted  and (redacted) dated redacted.

d) The CA’s Regulation 113 Review response dated redacted.

e) The appellants Statement of Case letter dated redacted  with associated information including:

      (i) redacted and redacted.

      (ii)  redacted electricity bills for redacted to redacted.

      (iii) redacted water bills for redacted to redacted  .

      (iv) Internet Invoices from redacted to redacted.

      (v) Sworn affidavits of redacted and redacted.

f) The CA’s Appeal Statement with supporting information including:

      (i) redacted Local Committee Meeting addendum dated redacted.

      (ii) redacted full Council Minutes dated redacted.

      (iii) Google street view dated redacted

      (iv) Application form signed redacted (App No redacted  ).

      (v) CIL Form 1 signed redacted.

      (vi) Planning statement dated redacted.

     (vii) Transport statement dated redacted.

     (viii) Updated CIL Form dated redacted.

     (ix) Monitoring photos dated redacted and redacted.

     (x) Site photos dated redacted.

     (xi) Planning statement (redacted) dated redacted  .

     (xii) Covering letter (from redacted) dated redacted  .

     (xiii) CIL Form and Planning Statement from application redacted.

     (xiv) Sales Brochure for property produced after redacted  .

     (xv) Planning Statement dated redacted.

     (xvi) Council tax email dated redacted confirming the building is empty since redacted.

g) Appellant’s comments on the CA’s representations, dated redacted.

Grounds of Appeal

2. Prior Approval Permission was granted for the change of use from Class E (Office) to Class C3 (Dwellings) at redacted ; on the second to fifth floors, as granted on redacted (Application ref redacted ), and on the first floor, as granted on redacted (Application ref redacted).

3. On redacted, the CA issued two Liability Notices;

a) redacted  for a sum of £redacted.  This was based on a net chargeable area of redacted  m² at the redacted   Residential rate of £redacted  per m² plus indexation (redacted) and the  CIL CIL2 rate of £redacted  per m² plus indexation (redacted).

b) redacted  for a sum of £redacted.  This was based on a net chargeable area of redacted m² at the redacted  Residential rate of £redacted per m² plus indexation redacted () and the redacted CIL redacted CIL2 rate of £ redacted per m² plus indexation (redacted).

4. The Appellant requested a review of this charge on redacted , under Regulation 113 of the CIL Regulations 2010 (as amended) (which was 1 day outside of the 28 day review period, but the CA still carried out the review).  The CA responded on redacted, stating that it was of the view that its original decision was correct and should be upheld.

5. The Appellant’s grounds of appeal can be summarised as follows:

a) The property was in lawful use for at least six months during the relevant period and therefore a GIA offset should be applied to both CIL Liability Notices.

6. The CA has submitted representations that can be summarised as follows:

a) There is insufficient evidence to support that lawful use occurred for at least six months during the relevant period.

b) There is extensive evidence that the building was empty and redundant during the relevant period.

Lawful use

7. The CIL Regulations Part 5 Chargeable Amount, Schedule 1 defines how to calculate the net chargeable area. This states that the “retained parts of in-use buildings” can be deducted from “the gross internal area of the chargeable development.”

8. “In-use building” is defined in the Regulations as a ‘relevant building that 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’.

9. “Relevant building” means a building which is situated on the “relevant land” on the day planning permission first permits the chargeable development. “Relevant land” is “the land to which the planning permission relates” or where planning permission is granted which expressly permits development to be implemented in phases, the land to which the phase relates.

10. Schedule 1 (9) states that where the collecting authority does not have sufficient information, or information of sufficient quality, to enable it to establish whether any area of a building falls within the definition of “in-use building” then it can deem the GIA of this part to be zero.

11. The appellant states that the CIL liability notice is incorrectly calculated as the existing floorspace was excluded.  They state that the building was lawfully occupied and satisfied the ‘in use’ test, for a continuous period of at least 6 months within the three year period, ended on the day that planning permission first permits development.

12. The appellant acknowledges that the supporting documents for the planning permissions relating to the building all reference the building as being vacant since redacted (which includes the period they state it was occupied by redacted).  They explain this contradiction as being in error and that agents made mistakes.

13. The appellant upholds that part of the building was used for its lawful purpose (E class use) for a period in excess of 6 months within the 3 year period, prior to the granting of planning permission.

14. Supporting evidence of the appellants claim has been provided in the form of:

a) A short form commercial lease, dated redacted between redacted and redacted;

b) Various utility bills (water and electricity) and internet invoices;

c) Two sworn affidavits from the part owner of redacted and a representative of the redacted.

15. The affidavit of the part owner of the property states the redacted   occupied the building when inspected in  redacted and they were using the building as office floorspace.  They then vacated the building before re-occupying again on redacted for a further redacted months.  He visited the site periodically over the term of the redacted lease and at each visit the property remained in use as office floorspace.  The representative of the redacted states they have been an occupier of redacted since redacted , ended redacted. Work that took place was predominately administrative work, property management and event co-ordination.  During the Term up to three employees and volunteers occupied the 1^st^ floor of redacted during normal office hours working 0900 to 1700, Monday to Friday.

16. The water bills provided for the period redacted to redacted are estimated bills and the three electricity bills for the period redacted to redacted  at £redacted, £redacted  and £redacted respectively, show irregular, low, usage patterns and are addressed to redacted.  The appellant has failed to confirm whether there is a link between the bill payer and the redacted, so it is assumed not.

17. The CA refute the appellants claim that the building was ‘in use’ as an office for a 6 month period from the redacted  .

18. The CA consider the appellants current stance to be contradictory to all previous information submitted by them which confirms the building to have been vacant since redacted.   Planning documents and supporting information, plus the sales particulars all reference the property as having been in use as an office until . redacted The CA do not consider the subsequent evidence provided by the appellant to outweigh the body of historical evidence; a short lease agreement has been provided by the appellant, together with supporting information to evidence the letting of the building to redacted for a one year term from redacted.

19. The CA highlight that the building was boarded up during the period when occupied by the redacted and attracted anti social behaviour during this time which would not be expected for an occupied, in use building.  They also refer to the sales particulars and numerous planning documents which all referenced the building as being vacant since redacted.

20. The CA arrived at their opinion as a result of the information provided by the owner of the building and representatives of, but they further support their opinion with meeting minutes and photographs taken from Google Street View and  site monitoring visits.

21. The evidence presented by the appellant was considered by the CA during the Regulation 113 appeal, but was dismissed as not proving the building was being continuously used as an office (its lawful use) for a 6 month period during the three year relevant period.  Thus the existing GIA (Gross Internal Area) was not offset against the CIL liability of the proposed developments.

22. In respect of the short lease, the CA state there is no evidence to suggest that the redacted used this office space for administrative purposes in continuous lawful use as all their company records held on the Charities Commission records show their registered address at redacted.

23. The evidence presented by the CA is all dated within the period the appellant stated the building was in lawful and continuous use by the redacted  .

a) redacted Local Committee Meeting – Addendum dated redacted  .  The building was referred to as an ‘eyesore’ and ‘empty’ by a local person familiar with the area.

b) redacted Full Council Meeting – Minutes dated redacted.  The local councillor for the area which redacted  is situated within, raised the issue of the constant piles of rubbish outside the property, which the council had to clear.

c) Google Street View – redacted.  Showed concrete blocks in place to prevent access to the forecourt of the property, overflowing waste bin, fly tipped rubbish on the ramp to the front door, all ground floor windows boarded up and graffitied.

d) Planning Application redacted.

i. The Prior Approval application was signed on redacted.  The form included a question, ‘Has the building been vacant for a continuous period of at least 3 months immediately prior to the date of this application?’  This box was ticked.  The agent for the owner therefore confirmed that the building had been vacant from redacted. (For the purposes of this CIL appeal, the appellant opines this was a mistake and the building was actually occupied by the redacted  .)

ii. CIL Form 1 signed redacted Part 7b indicates the building was last used as an office on redacted.  This form was submitted on redacted.  (Again the appellant states this was a ‘mistake’).

iii. The planning statement dated redacted, states ‘the building has been vacant for 3 years and the premises have been vacant since redacted’. The appellant claims this was a mistake.

iv. Transport statement dated redacted refers to redacted  as a ‘disused office building’.

v. The Updated CIL form signed redacted part 7b indicates the building was last used as an office on redacted  .  This form was emailed to the Council following their receipt of an email regarding CIL Liability.

e) Site monitoring visits- redacted and redacted.  The redacted photo shows the ground floor boarded up with cars parked illegally in the forecourt.  The redacted photo shows bollards installed by the Council to prevent illegal parking whilst the building was vacant.  There were problems of ongoing antisocial behaviour at the property during the period the appellant states it was being used continuously, as an office.

f) Planning Application redacted - Site photos dated redacted show the ground floor rear windows boarded up, similarly to the front windows.  The alternative entrance to the office space  on the upper floors directly via the stairwell would involve entering through the fire escape.  Planning statement dated redacted states ‘The site constitutes a six  storey office building which has been  vacant for over redacted months’.

g) Planning application redacted – Covering letter dated redacted states ‘The site constitutes a six storey office building which has been vacant for over redacted months’.

h) Planning Application redacted – CIL Form 1 signed redacted Part 7b indicates the building was last used as an office on redacted.  Planning Statement dated redacted states ‘The site constitutes a six storey office building which has been vacant for redacted years.

i) GLPG Sales Brochure- dated some times after redacted was decided on redacted.  The brochure states ‘ The property has been in continuous office use since the 1960’s but has been vacant since redacted  .’

j) Planning application redacted – Planning Statement dated redacted   states ‘a Contamination Risk was carried out as part of the previous planning application for the site (redacted).  The site has been vacant since this assessment was carried out, so the conclusions drawn can be used in support of this application’.

The contamination risk assessment referred to is dated redacted  and the latest report was written by an independent specialist so the continuation of a ‘mistake’ or factual inaccuracy is unlikely.

k) Council Tax email – dated redacted – confirms the building has been recorded as empty by redacted Council Tax team since redacted  .

l) An updated CIL Form signed redacted submitted by an agent for the owner of the building, stated the building was last used as an office on redacted  .  This form was signed in redacted (post the occupation of redacted  ) but it failed to reference any use of the building in redacted, which the appellant now claims to be the case.

24. In accordance with Schedule 1, Part 1 1(8) of the CIL Regulations, the CA does not consider that sufficient information has been provided to establish that the building was an ‘in use’ building, as it fails to overturn the weight of evidence held by the CA, to the contrary.  The CA consider on the balance of probability that if there was use of the building within the relevant three year period it would be too minimal for the building to be considered ‘ in use’ for the purposes of the CIL Regulations.

25. Community Infrastructure Levy (CIL) regulations can offset Gross Internal Area (GIA) in certain situations. Specifically, existing floorspace that has been in continuous lawful use for at least six months within the three years preceding the development can be deducted from the GIA for CIL calculation purposes. This is outlined in Regulation 40 of The Community Infrastructure Levy Regulations 2010.  The CA considers the above evidence supports their view that the building was not ‘in continuous, lawful use’ for at least six months within the three years preceding the development.  Thus the existing GIA can not be deducted for CIL calculation purposes.

26. The agent for the appellant, responded to the CA’s representations, on redacted.  Points made included:

a) The agent stated the occupation of the building by redacted was to meet the CIL ‘in-use’ requirements and that they consider ample evidence has been provided to demonstrate that the building was’ used by some of the employees of redacted’.

b) The low power usage was attributed to the limited number of people occupying the office and whilst the electricity bill related to the whole building the meter is located on the ground floor, hence the bill referencing it.

c) The water bills although estimates were the only ones available.

d) The building may have appeared vacant but it was occupied by a small number of employees of redacted   who accessed it from the rear.

e) With regards to past planning documents and forms submitted which stated the building had been vacant since redacted  , these were mistakes.

f) It is accepted the building was in limited use but “*one or two people working within a building is sufficient in order to meet the occupation test.” And this could be easily missed by passers by.

g) The photographs are disputed as being evidential of no occupation.  Blinds are evident on the first floor, as is typical of occupation and whilst the ground floor windows were boarded up due to anti social behaviour, the tenants accessed the building from the rear.

h) GLPG marketed the site for a number of years and at the time the brochure was prepared the building was vacant.

Approved Development in Dispute

27. The building is a six storey, office building with two car parks, which appears to have been purpose built circa 1960’s.

Decision

28. I note that there is no disagreement in relation to the dates of the three-year period under consideration.

29. The level of office use suggested by the Affidavit of the redacted I consider to be low; ‘up to three employees and volunteers’ occupied the first floor.   The purpose of granting the short lease could be questioned; I note that the building was not the registered address of the redacted  and the agent for the appellant freely states within their response to the CA’s representations that the occupation of the premises was undertaken to meet the CIL ‘in-use’ test.  The presence of a short term lease is not necessarily evidence of actual occupation and use.

30. The varying electricity bills provided I consider to be commensurate with occasional use, rather than continuous use. I note the water bills are for estimated use, so are of limited value as evidence of occupation.  Similarly the payment for a router I do not consider to be evidence of actual occupation and/or use of the building as an office.  No evidence has been provided to link the name of the bill payer for the router, to the redacted  (the tenant).

31. I do not consider the sworn affidavits, the utility bills and the presence of a router to irrefutably confirm the continuous, lawful occupation of part of the building as an office.

32. I opine that that the professionals who submitted documentation in respect of planning applications for the property will have obtained their information from the instructing source, which was likely to be the owner or agent for the building.  The balance of probabilities that all were ‘mistaken’ in stating that the building was unoccupied and unused since redacted  I consider to be very low.

33. I opine that the degree of occupancy and frequency of occupancy suggested by the appellants evidence does not support a pattern of continuous lawful use of the building as an office.

34. Burden of evidence; having considered the evidence presented by both the appellant and the CA I consider the balance of probabilities to favour the extensive evidence presented by the CA, which is derived from multiple sources and over a period of years.  This clearly and unequivocally supports the view that the building was vacant since redacted.

35. I understand that the GIA of the existing building is the same as the GIA of the consented building (i.e. this is a change of use with no additional floor space) and therefore the net chargeable area is redacted m² for redacted and redacted m² for redacted.

36. On the basis of the evidence before me, I determine that the Community Infrastructure Levy (CIL) payable in this case should be £redacted  (redacted) for application redacted  and £redacted  (redacted) for application redacted  and hereby dismiss this appeal.

redacted BSc (Hons) MRICS FAAV
Valuation Office Agency
16 April 2025