Planning expert calls for more consultation on levy regulations

Planning Resource has reported that Johnson, London First, the British Property Federation and the Home Builders Federation have written to DCLG over the implications of the Community Infrastructure Levy (CIL) Regulations.

The CIL is a new way of collecting developer contributions to help fund infrastructure projects. It allows local authorities to charge a tariff, at a locally set rate, on many types of new development.

The money can then be used to pay for a wide range of additional infrastructure that is required as a result of development. This can include transport schemes, green infrastructure and community facilities. 

The Community Infrastructure Levy (CIL) Regulations have been criticised for a perceived lack of clarity which the bodies think could result in developers being charged twice for the same development, leading to a number of projects becoming unviable.

Planning law expert Richard Ford of Pinsent Masons, the law firm behind Out-Law.com, backed the idea of a formal consultation on the Regulations.

"A formal DCLG consultation on the CIL Regulations would be useful to capture a number of changes the development industry would like to make,” he said.

There is concern that an application to vary a condition under section 73 of the Town and Country Planning Act could result in the levy being imposed twice for the same development.

“We would strongly support an amendment to the CIL regulations so a permission granted further to a section 73 application does not trigger a CIL liability," said Ford.

Regulation 128 offers transitional protection by stating that the development is not liable for CIL if, on the day that planning permission was granted, no charging schedule exists. Furthermore, regulation 9 (5) states that if an application is varied, it is still classed as the development for which permission was granted.

However, it is argued that the result of a section 73 application is not to vary an application but to grant a new permission. This would therefore not invoke the protections in the Regulations and a developer could be liable to pay the levy twice.

Ford said that the councils, as charging authorities, should have more accountability as to how the CIL money is spent. Under the Regulations, councils should maintain a list of infrastructure projects or types of infrastructure that it intends to spend CIL money on. However, the list is not fixed and can be changed at any time.

"Further useful amendments would include a limitation on a charging authority amending the section 123 CIL infrastructure list without an examination process so there is certainty as to what CIL monies will be spent on," said Ford.

The flexibility for councils on how money is spent also raises concern that developers could be required to pay for the same infrastructure twice, where both the CIL and an agreement under section 106 of the Town and Country Planning Act is used.

"There should be clarity in the regulations that developers would not suffer a 'double hit' by section 106 agreements and CIL where a mix and match approach to CIL and section 106 agreements is adopted by a charging authority," said Ford.

A section 106 agreement was the mechanism used to secure mitigation for developments prior to the introduction of the CIL in 2010. The requirement for a section 106 agreement has not been removed entirely and the agreements still be required for some infrastructure, such as affordable housing. Alternatively, developers and councils can agree to use a combination of section 106 agreements and the CIL to agree on a suitable mitigation package.