Levy abatement where an earlier permission was implemented

Abatement is the mechanism that stops a developer paying the Community Infrastructure Levy twice for substantially the same building. Where CIL has already been paid on a permission and a section 73 permission produces a revised chargeable amount, the amount already paid is credited against the new liability. CIL abatement on an earlier permission is not an exemption and not a relief, which matters because exemptions have to be claimed before development starts and abatement is applied by the collecting authority as part of the recalculation.

A separate and more commonly used credit sits alongside it: the deduction for existing floorspace in a building that was in lawful use. The two get conflated constantly, and they have different tests and different evidence requirements.

What abatement achieves, and what the in-use deduction achieves

Two mechanisms, two jobs.

Abatement applies where CIL has already been paid in respect of a chargeable development and a section 73 permission changes the liability. The regulations provide for the sum already paid to be credited, so the developer pays only the difference where the revised amount is higher, and the overpayment is dealt with where it is lower.

The in-use building deduction works on floorspace rather than on money. Where a building on the relevant land has been in lawful use for a continuous period of at least six months within the three years ending on the day planning permission first permits the chargeable development, its floorspace comes out of the chargeable area. On a conversion or a replacement building this is usually worth far more than anything else in the calculation.

The trap that catches developers: floorspace built under an earlier permission cannot be treated as an in-use building when calculating liability on a section 73 permission for the same development, even where that floorspace has by then been in lawful use for six months. The credit for the earlier scheme comes through abatement, not through the in-use deduction, and trying to claim both for the same floorspace does not work.

Qualifying earlier permissions

For abatement, the earlier permission has to be one on which the levy has actually been paid in respect of the chargeable development, and the later permission has to be a section 73 permission varying it.

Three limits are worth knowing before you build an appraisal on it.

1. It is tied to section 73. A fresh full application for a revised scheme is a new chargeable development, and the abatement mechanism does not reach it. That alone is often the deciding factor in choosing between a section 73 and a fresh application.
2. It does not apply to retrospective permission under section 73A. An appeal decision in 2026 confirmed that reading, which closes off a route some developers had hoped was open.
3. Where the original permission predates the charging schedule entirely, you are in transitional territory rather than abatement, and the transitional provisions in the Schedule to the Regulations decide the outcome.

Evidence that the earlier scheme was implemented

This is where claims fail, and almost always on the in-use deduction rather than on abatement.

The collecting authority is entitled to treat a building as not in use where it does not hold information of sufficient quality. The burden is practical rather than legal: if you cannot show six continuous months of lawful use in the relevant three-year window, the deduction goes.

What collecting authorities accept:

• Business rates records, including the rating list entry and any empty property relief periods, which are the strongest single source.
• Council tax records for residential use.
• Utility bills showing consumption rather than standing charges alone.
• Tenancy agreements, with rent receipts or bank records corroborating occupation.
• Dated photographs, signage, trading records and insurance documents as supporting material.

Two further conditions get overlooked. The building has to be a relevant building situated on the relevant land, so a structure outside the red line boundary on the approved plans does not count, however close it is. And the use has to have been lawful, which on a building used in breach of condition or without permission means the deduction fails even though the building was plainly occupied.

Recent levy appeal decisions on gov.uk are a useful read before submitting a marginal claim, since they show exactly how strictly the six-month test is applied.

How the credit is calculated on a section 73 permission

The recalculation compares two notional amounts rather than simply re-running the current charging schedule.

The authority works out what the chargeable amount would be for the earlier permission and for the section 73 permission, both calculated as if permitted on the same date as the earlier permission. If the section 73 figure is higher, the developer pays the difference. If it is lower, the overpayment is addressed under the relevant provision rather than being refunded automatically.

Calculating both on the earlier date is the detail most appraisals get wrong. It means indexation between the two dates does not inflate the comparison, so a variation that adds no floorspace should not generate a new charge simply because the index has risen. Where a variation does add floorspace, it is the added floorspace that drives the increase.

A worked check worth running on any section 73: take the original liability notice, the original chargeable area and the index figure used, then recompute with the varied scheme on the same basis. If the collecting authority's figure differs, you have a specific question to ask rather than a general complaint, and that is what gets a liability notice corrected. The same arithmetic discipline applies across an appraisal, as set out in viability appraisal outputs.

Interaction with a section 73 application

The choice between a section 73 and a fresh application is usually framed around what can lawfully be varied. Levy liability deserves a seat at that table.

A section 73 keeps the abatement route open and keeps the comparison anchored to the original permission's date. A fresh application resets everything: a new chargeable development, the current charging schedule, the current index, and an in-use test measured against the three years before the new permission first permits development. On a site where the original buildings were demolished years ago, that reset can be expensive, because the demolished floorspace is no longer in use and no longer deductible.

There is a timing consequence too. If the original permission has not been implemented and the in-use window is closing, the order in which you start work and vary the permission matters. Model it before deciding, and record the assumption in the appraisal alongside the other cost lines, in the same way that highway and infrastructure costs are treated during an independent review of a viability appraisal.

Deadlines, notices and the review route

Abatement is applied by the collecting authority in the recalculation, so there is no claim form of the kind required for self-build or charitable relief. What there is instead is a short window to challenge the figure.

The sequence runs: liability notice issued following permission, assumption of liability, commencement notice before starting work, then demand notice. If the chargeable amount on the liability notice looks wrong, request a review by the collecting authority within the period the regulations allow, which is short and runs from the date of the notice, and then appeal the chargeable amount to the appointed valuer if the review does not resolve it. Check the current regulation numbers and periods, because the amendment regulations have changed them more than once.

Relief and exemptions are a different discipline entirely and must be claimed and acknowledged before development begins. Starting work first removes them permanently, with no discretion available to the authority.

Records to keep from the first permission

The documents that make a later abatement or in-use claim straightforward, kept from day one:

• The original liability notice, demand notice and proof of payment, with the chargeable area and index figure as stated.
• The assumption of liability and the commencement notice, with the date acknowledged by the authority.
• The approved drawings and the red line plan, which fix what counted as the relevant land.
• A floorspace schedule measured on the gross internal area basis the regulations use, prepared at the time rather than reconstructed later.
• Business rates and council tax records for every building on the site, collected before the buildings come down.

That last point is the one developers regret. Rating records for a demolished building are harder to obtain after demolition, and on a conversion scheme the existing floorspace deduction is often the largest single figure in the calculation, which is why it features so heavily in viability on a listed building conversion.

A Viability Assessment that states the levy assumption, the deduction claimed and the evidence behind it reads as credible to a reviewer. One that shows a net levy figure with no working behind it invites the reviewer to substitute their own.

This is general guidance, not legal advice; check the current text of the Community Infrastructure Levy Regulations 2010 as amended and take advice from your local planning authority or a qualified professional before relying on it.