Out-Law News 1 min. read
09 Mar 2012, 2:45 pm
Newark and Sherwood is the first council to begin charging the CIL and in its letter highlighted the need for PINS to follow the DCLG's guidance on charge-setting and charging schedule procedures when examining CIL charging schedules. This is necessary to avoid the risk of judicial review challenges and raising State Aid concerns, it said.
The Council said that through setting differential rates for residential and commercial development on policy grounds, rather than on the basis of viability, the distinction in the amount of CIL charged for different types of development may not be properly justified and may amount to State Aid, which is regulated by the European Commission.
“Newark and Sherwood Council is saying in public what many developers have been saying in private about the inadequacy of CIL examinations ever since it and Shropshire were the first authorities to successfully navigate the Charging Schedule process at the end of 2011," said planning law expert Marcus Bate of Pinsent Masons, the firm behind Out-law.com.
"The trend of imposing multiple differential rates, including differential rates within the same use class, such as for small and large retail, is growing at some pace, despite clear Government guidance that Charging Schedules should be kept as simple as possible," he said. "Newark’s comments are a salutary reminder that this practice raises real planning and State Aid risks, not to mention administrative challenges when it comes to charging and collecting CIL.”
“The wider issue, though, is not whether authorities and examiners are complying with the statutory guidance, but whether that guidance is fit-for-purpose," said Bate. "Experience of early examinations and consultations on Charging Schedules suggests that the guidance leaves much to be desired, with authorities being provided too much discretion and examiners being given too little scope to meaningfully assess the viability and appropriateness of proposed rates.”
