COMMUNITY INFRASTRUCTURE LEVY – LIMBERING UP AND TACKLING THE
HURDLES Caroline Bywater, Mills and Reeve
Caroline Bywater is a senior solicitor specialising in planning law at Mills & Reeve LLP. Caroline’s work involves a wide range of planning related issues from considering planning applications and drafting 106 agreements to dealing with appeals to the Planning Inspectorate or in the High Court. Her current work includes assisting on the planning application for the proposed development at Alconbury and advising on planning issues relating to the O2. She has significant experience in acting for local planning authorities in relation to s106 agreements and related planning issues.
Caroline.Bywater@
Mills-Reeve.com
Saskia Molekamp is a trainee solicitor at Mills & Reeve LLP.
Caroline sets out a thorough summary of the CIL Regulations and guidance for introducing and managing funding for infrastructure.
CIL was introduced by the Planning Act 2008 and brought into force in April 2010 by the Community Infrastructure Levy Regulations 2010, as amended by the Community Infrastructure Levy Regulations 2011. The Regulations are lengthy and complex and, whilst we cannot go into all detail here, we set out below an overview of them.
By way of introduction, the levy is a per square metre payment due in relation to the development of buildings (with some exceptions and save for those such as sub-stations and wind turbines where people do not normally go). The rate, or rates, of payment, which can vary depending on locality or the intended use of the development, will be set out in a local authority’s ‘charging schedule’.
Authorities are empowered to use their CIL receipts for funding ‘infrastructure’.
THE TERRIER - Summer 2012
This is defined widely in the Planning Act 2008 and does not currently include affordable housing, which continues to be dealt with pursuant to s106 agreements - although this may change in the aftermath of a recent consultation.
Local authorities have discretion, in theory at least, both as to whether to introduce CIL in their area and on the CIL rate or rates to charge. However, as the Regulations also restrict the use of s106 agreements, authorities will almost inevitably have to prepare for the (dare we say) Olympian task of introducing and administering CIL.
On Your Marks…
The first decision for a local authority is of course whether to charge CIL at all. If the discretionary nature of CIL is supposed to support the spirit of localism, this intent is somewhat undermined by the restrictions that the regulations impose on the use of s106 obligations. The clear intention is a scaling back of s106 agreements and a switch to CIL for the funding of
infrastructure. These restrictions are found in regulations 122 and 123. The detail is shown in the accompanying flowchart.
Regulation 123 is perhaps the more noteworthy in this context. It states that a s106 obligation cannot constitute a reason for the grant of consent if it provides for the funding of infrastructure that is on the authority’s published ‘CIL list’ (being the published list of infrastructure which the authority intends to fund through CIL receipts) but in the absence of such a list, a s106 obligation will not be able to constitute a reason for granting planning permission if it provides for the funding of any type of infrastructure. This restriction currently applies only where a charging schedule is in place, but will apply universally after 6 April 2014 and therefore represents a real incentive to begin charging CIL before then.
Regulation 123 also provides that a s106 obligation cannot constitute a reason to grant consent if it provides for the provision or funding of infrastructure
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