Newham was challenging the decision of an Appointed Person (AP) under the Community Infrastructure Levy Regulations 2010.  Newham was seeking a CIL payment of £1.6 million, based on their contention that the Good Hotel – a floating hotel moored in the Royal Victoria Dock – was liable to CIL.  The claim concerned a question of statutory interpretation about the meaning of the word “building” for the purposes of the Community Infrastructure Levy Regulations 2010.

CIL may only be charged for the “development” of land, which is defined in the Planning Act 2008 as anything done by way of or for the purpose of the creation of a new building, or anything done to or in respect of an existing building.  For there to be development for CIL purposes, there must be a “building”.  The AP had held that the floating hotel was not a building.  That decision was upheld by Lang J in her judgment. 

The respondent Commissioners for His Majesty’s Revenue and Customs had argued that it was correct to distinguish between a vessel and a building.  HMRC argued that a vessel would not normally be described as a building.  It is inherent in the nature of a vessel that it is not a fixed permanent thing and therefore not a building.  A vessel can only become a building if it is changed by converting it into a fixed permanent structure.

In her judgment, Lang J had said at [34]:

“The literal meaning of "building" - "a thing which is built" - would not have enabled the AP to determine the meaning of "building" in the context of the CIL Regulations because it is too broad. The defendants cited an apt passage from the judgment of Byles J in Stevens v. Gourlay (1859) 141 ER 752 at [757] where he said: "… What is a 'building'? Now, the verb 'to build' is often used in a wider sense than the substantive 'building'. Thus, a ship or a barge-builder is said to build a ship or a barge, a coach-builder to build a carriage; so, birds are said to build nests: but neither of these when constructed can be called a 'building'".”

In his decision of 1 November 2024 refusing permission to appeal, Lewison LJ noted that what the relevant planning permission permitted was the mooring of a floating hotel and that the underlying question was whether the floating hotel was or was not a building.  Lewison LJ said that whether something is or is not a building is a question of fact and degree.  The AP’s decision was carefully reasoned and disclosed no error of law, so an appeal would have no real prospect of success. 

Richard Honey KC appeared for the successful respondents, leading Ben Du Feu, instructed by HMRC solicitors.