Draft Changes to Community Infrastructure Levy Regulations published

Steeles Law's Head of Planning and Environment David Merson looks at the Coalition’s proposals to amend the Community Infrastructure Levy ("CIL") Regulations to correct the anomalies currently encountered.

Draft regulations amending the CIL Regulations have been laid before Parliament and published this week.

The main changes relate to s73 variations in order to ensure that CIL would not be payable twice for the same development.  In addition there is confirmation that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1October 2012.

It is interesting to note that there is at present no provision in the draft amended Regulations for the application of CIL monies towards the provision of Affordable Housing which will, at least for the moment, still have to be addressed and negotiated through the s106 Planning Obligation mechanism.  Furthermore, there is no provision for the passing of a "meaningful proportion" of CIL funds received to neighbourhood bodies.  Both of these potential amendments had previously been floated by the Government earlier this year. 

The amended Regulations are expected to come into force shortly (possibly as early as mid November) but will not apply retrospectively.

The draft Regulations can be viewed here.

Note however that the amended Regulations are in draft and it is therefore still possible that there may be some further changes before they finally come into force.

The main proposed amendments are as follows:

Section 73 issues

Under the current Regulations, CIL may be payable on both the s73 permission as well as on the original planning permission.  The new draft Regulations change this by the removal of the double charging element.

If a charging schedule is in place both at the time the original planning permission is granted and the time a s73 permission is granted, CIL will be payable only once but on the following basis:

• Where the CIL charge calculated at the time of the original permission is the same as the CIL charge calculated at the time of the s73 permission, CIL will be payable on the chargeable development under the original planning permission only.
• If there is a change in the CIL charge between the original planning permission and the s73 permission, and if that change is due to a change in a condition under the s73 permission, CIL will be payable only on the chargeable development which is the most recently commenced or re-commenced chargeable development.
• For the purposes of these s73 calculations, the date on which the s73 permission "first permits development" should be regarded as the same as the date at which the "planning permission first permits development" for the original permission.

It will be possible to off-set CIL already paid against any new charge in circumstances where a CIL payment has already been made in relation to the original permission, and the charging authority issues a new liability notice in relation the s.73 permission because the CIL liability has changed.

Transitional provisions provide that if a planning permission is granted when there is no CIL charging schedule in place, and a later s73 permission is granted when there is a CIL charging schedule in place, the CIL charge will be: 

• CIL payable on the chargeable development under the s73 permission minus the CIL that would have been payable under the original permission (using, for purposes of calculation, the charging schedule in force at the time of the s73 permission). 

A CIL charge will therefore only be incurred if the s73 permission results in an increase in CIL payable.

Replacement Permissions to allow extension of time to implement

'Replacement' planning permissions can be granted where the original permission was granted on or before 1st October 2010, is still extant and is unimplemented (see article 18(1) of the (Town and Country Planning (Development Management Procedure) (England) (Amendment No 2) Order 2012). 

CIL will not be chargeable where the original permission was granted before a charging schedule was in place and the replacement permission is granted (under Article 18(1)) when a charging schedule is in place.

Development under "neighbourhood development orders"

The CIL Regulations will apply to development consented under a neighbourhood development order (see s61E of the Town and Country Planning Act 1990, as amended by the Localism Act 2011).  This means that CIL is potentially payable.

Regulation 40 formula correction

The amended Regulations correct an error in the formula in Regulation 40 the effect of which is to ensure that there will be no overcharging for development involving the retention of some existing buildings and the demolition of others.

If you require further information or advice on any issues raised in this article or any other planning and environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

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