Tales from the CIL Files: A short list of things that are not "buildings"
You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of calculation. Next stop, the CIL Files!
I know. It hasn't been long since we last visted the dark and dusty vaults of the VOA CIL Appeal Decisions archive…. but trust me. I have good reasons for returning.
There seems to have been an increase in CIL related* arguments over what does and does not constitute a building of late.
It may not be a particularly scientific sample - but I have stumbled across three such decisions in last month.
This has inspired me to start a list, which I am sharing in case it is useful, and also because… for those of us with a slightly odd sense of humour…. it is occasionally amusing.
Please feel free to add to it:
A short list of things that are not “buildings” for CIL Purposes
I have written about London Borough of Newham, R (On the Application Of) v Revenue and Customs [2024] EWHC 2321 (Admin) before, but it deserves a second mention.
This is the High Court case in which Mrs Justice Lang determined that you can't levy CIL on a boat.
To briefly recap the reasons for this decision:
- There is no statutory definition for the term "building" within the CIL Regulations. The wide definition of "building" at section 336(1) TCPA 1990, which includes any "structure or erection", is explicitly excluded from the CIL Regulations made under Part 11 of PA 2008 by section 235(1) PA 2008.
- In this instance, the development for which permission was granted as the act of mooring the hotel (ie securing it at the dock) not the erection or building of a hotel; and finally;
- A vessel is not a building, but a vessel may be adapted into a structure which has the characteristics of a building. In this case, the floating accommodation platform that had been fitted out for use as a hotel could not be described as a "permanent fixed thing built for accommodation" and so did not constitute a “building” within the meaning of the CIL Regulations.
In VOA CIL Appeal reference 1851006 the VOA was asked to decide not only whether glamping pods were buildings, but also whether they should charge CIL at full residential rates.
The answer to both of these questions was no.
The Appropriate Person deciding the appeal considered the glamping pods in the light of the decision in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] 2 PLR 102.
In particular whether their size, permanence and degree of physical attachment to the land led to them being properly considered to be buildings.
The Appropriate Person held:
"31. Taking the three tests together I am of the view that size, permanence or physical attachment have not been demonstrated in a way that supports the subject being defined as a building.
32. With regard to the question of whether the structures are residential dwellings, I have considered the following; the reason for construction of the structures was to extend the usable period (to 365 days) of guest occupation for glamping
purposes, it was not to provide residential accommodation. Whilst more robust than the tents they replaced, the structures still lack facilities you would expect to find within a residential dwelling and guests are expected to cook on open fire grills, as part of their glamping experience.
The limited size of the structures together with their design (focusing on the needs of temporary short term guests rather than permanent residents) indicates these are not intended to be residential dwellings."
3. Open sided car ports or canopies
In VOA CIL Appeal reference 1851808 the VOA was asked to decide whether open sided car ports were CIL liable buildings.
Again the answer was ‘no’. The relevant extracts from the VOA Appeal Decision are below:
"19. The CA suggest that the correct definition of “building” to be used for CIL purposes is that contained within the Planning Act 2008, as this is the parent act for the CIL Regulations. The Planning Act adopts the definition of building the Town and Country Planning Act 1990, as follows: “building” includes any structure of erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.” They point out that there is no requirement for walls within this definition of a building.
20. The appellants dispute that this is the correct definition of building and point out that the 2008 act specifically excludes Part 11 (CIL) from the definition. This is because the planning definition includes structures that are not buildings, whereas CIL is only applicable to buildings with an internal area.
21. Car ports are not specifically referenced within the RICS Code of Measuring Practice. It is therefore necessary to consider the construction and appearance of the car ports, to determine whether they can be included within GIA, or whether they should more correctly be considered as a canopy and therefore excluded.
22. The car ports in this development are either freestanding car ports with no perimeter walls, or they adjoin a garage and therefore have essentially one wall and three open sides. Each car ports comprises a pitched roof, supported at each corner by a pillar. Double car ports have pillars at the midpoints of the eaves in addition to those at the corners. All of the car ports are therefore open to either three or four sides.
23. In my opinion, the car ports are more akin to canopies than to buildings that should be included within the GIA. Although I agree with the CA that a building does not need to be fully enclosed to be measurable to GIA, I also agree with the appellant that a structure comprising a roof and no walls (or one wall where it adjoins the garages) has all the characteristics I would expect of a canopy."
4. Caravans and Shepherd's Huts
In this appeal the VOA was asked to decide whether a shepherd's hut and “ecopod” were buildings for CIL purposes.
The answer was no.**
It is an older appeal, and the BLEEP button makes a return in the quoted section below, standing in place of redactions in the text.
The Skerritts criteria were, once again, a key factor in the decision, with the appropriate person finding that:
"25. Both units in this case would appear to be only affixed to the ground by the connections necessary for services. The “degree of permanence” of these units would not appear to
be attributable to the intention of the Appellants to move them around, but the capability to do so. The level of attachment to the land and ease with which the BLEEP and BLEEP can be disassembled and moved are considered to be the main factors that
prevent them from being considered as “buildings”.
26. I have considered all the arguments made by the CA and find they do not fully address this key issue of whether the units can be considered as “buildings”, and it is my view that in order for the chargeable development to be liable for CIL the BLEEP and BLEEP would need to be proven to be “buildings” in order to be chargeable under the CIL Regulations.
27. Having regard to the above factors and having considered all the evidence and other submissions by both parties, it is not considered that either the BLEEP or BLEEP in this case can be regarded as “buildings” for CIL purposes.
28. The units as described in the various submissions by the parties meet the definition of “caravans” as defined under the Caravan Sites and Control of Development Act 1960 (as
supplemented by the Caravans Act 1968) as “any structure designed or adapted for humans habitations which is capable of being moved from one place to another (whether being towed, or by being transported on a motor vehicle or trailer).”
29. These units will not be permanently affixed to the land; will be of a size small enough by unit to fall within the definition of “caravan” and are capable of being moved from one place to another. I am of the view that it is irrelevant whether or not there is any future intention to actually move the BLEEP or BLEEP the definition of “caravan” under the Caravan Sites and Control of Development Act 1960 makes no mention of intention,
only capability."
This is another VOA Appeal decision about caravans. This time, in the form of “park homes”.
Again, the decision was made following a detailed discussion of the Skerritts principles.
The Appropriate Person found:
"26. The caravans (park homes) in this case would appear to be only affixed to the ground by the connections necessary for services and are surrounded by a brick “skirt” to each park home. The “degree of permanence” of these caravans (park homes) would not appear to be attributable to the intention of the Appellants to move them around, but the capability to do so. The level of attachment to the land and ease with which the caravans (park homes) can be disassembled and moved are considered to be the main factors that prevent them from being considered as “buildings”.
27. I have considered all the arguments made by the CA and find they do not fully address this key issue of whether the caravans (park homes) can be considered as “buildings”, and it is my view that in order for the chargeable development to be liable for CIL the caravans (park homes) would need to be proven to be “buildings” in order to be chargeable under the CIL Regulations.
28. Having regard to the above factors and having considered all the evidence and other submissions by both parties, it is not considered that the caravans (park homes) in this case can be regarded as “buildings” for CIL purposes.
29. The caravans (park homes) as described in the various submissions by the parties meet the definition of “caravans” as defined under the Caravan Sites and Control of
Development Act 1960 (as supplemented by the Caravans Act 1968) as “any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether being towed, or by being transported on a motor vehicle or trailer)”.
30. These caravans (park homes) will not be permanently affixed to the land, will be of a size small enough by unit to fall within the definition of “caravan” and are capable of being moved from one place to another. I am of the view that it is irrelevant whether or not there is any future intention to actually move the caravans (park homes) – the definition of “caravan” under the Caravan Sites and Control of Development Act 1960 makes no mention of intention, only capability.
31. Whilst the CA has demonstrated through the MHCLG Technical Note that the caravans (park homes) should be considered as “dwellings”, this does not preclude them from being “caravans” as opposed to “buildings”. Simply because a form of housing is considered to be a “dwelling” for the purposes of assessing housing land supply does not make it a “building"
*One might even describe them as CIL-ly
** otherwise it wouldn't have made the list.
Key Contact
