When the guidance came out in March 2018 that extensions do not lose their exemption if they fail to send in a Commencement Notice as per section 67 (1A). I disputed this with MCLG and asked if the legislation would be revised to remove the word extension from 42 B (6) so that legislation no longer conflicted itself between section 42 B (6) and Section 67 (1A). I was advised that it would not and that the intent of the government was found in section 67 (1A) not in section 42 B (6). As I do not have a crystal ball I have no idea how we were supposed to interpret that.
Anyway back in September 2017 we made a decision that an applicant lost the exemption and had to pay over £28K of CIL on a massive extension where a commencement notice was not received. We made this decision on section 42B (6).
This resulted in a huge complaint that went all the way to councillors, but we held our decision as we believed we were correctly interpreting CIL legislation as we were unaware of where the intention of the government actually lay and eventually they paid.
Following that and due to this applicants complaint MCLG themselves have responded to one of our councillors and advised them of the clarification on the legislation. However although the letter mentions section 67 (1A) it nowhere acknowledges that legislation conflicts itself by mentioning the legislation in section 42B (6) that requires a Commencement Notice for both extensions and annexes. I have the letter but thought not best to attach unless I redact names.
Any way now the complainants have received a copy of that letter about this guidance clarification and have forward a case to me that we return the £28K of CIL and pay them compensation for the distress. Basically they want us to pay them just over £40K because they claim DDC has unlawfully administered CIL.
Does anyone know where MCLG stands on cases where a decision was made prior to their clarification? Has anyone had to pay back CIL on this basis or had a claim for compensation due to distress. I do strongly feel legislation needs to be amended as it is leaving Charging Authorities open to these sort of claims.
Any thoughts?
