The government
is expected this week to announce amendments to the Community
Infrastructure Levy (CIL) regulations to prevent developers being charged
double planning gain*.
The
revised regulations are expected to contain measures to prevent developers from
being liable both to pay a CIL charge and make a section 106 contribution.
The regulations will seek to prevent CIL being charged just because developers are
seeking to alter or amend a planning permission that wasn’t subject to CIL because CIL hadn't come into force when the original planning permission was granted.
At present, under section 73 of the Town and Country Planning Act 1990, you can apply to vary a condition subject to which a planning permission has been granted and if the application is successful, a new consent is granted.
If the new consent is granted after CIL comes into force, it could attract a CIL charge.
There is currently therefore a risk of a development being subject to both a section 106 contribution agreed at the time of the original consent and a CIL liability relating to the section 73 consent.
At present, under section 73 of the Town and Country Planning Act 1990, you can apply to vary a condition subject to which a planning permission has been granted and if the application is successful, a new consent is granted.
If the new consent is granted after CIL comes into force, it could attract a CIL charge.
There is currently therefore a risk of a development being subject to both a section 106 contribution agreed at the time of the original consent and a CIL liability relating to the section 73 consent.
The regulations
are expected to come into force next month.
Other planning news - minister Nick Boles last
night said proposed temporary changes allowing larger extensions to homes
without planning permission could become permanent, in a forceful defence of
the proposed policy.
*Update - The draft regulations have now been published and here is some commentary from CMS Cameron Mckenna and some more from Pinsent Masons.
The effect of the draft regulations will be that if the section 73 consent does not result in an increased floor space compared to the original consent, then no CIL will be payable.
Developers will therefore have to take this into consideration if they want to increase floorspace.
The regulations are not retrospective and will only apply to section 73 consents issued after the regulations come into force.
It looks like one thing that hasn't been reformed is the complexity of the CIL regulations, which will dismay developers who are still likely to need specialist planning advice in many situations to steer them through this labyrinth.
UPDATE 18/10/12 The British Property Federation has warned London’s boroughs to take care when charging CIL or risk choking off development in the capital.
Liz Peace, chief executive of the BPF, told the GLA on 17 October: "There's no doubt if you set a high CIL you will scupper development...There's a fear CIL is being imposed on top of s106 agreements, rather than s106 being scaled back and CIL used to fund infrastructure in its place. This 'double dipping' needs to resolved."
UPDATE 5/12/12
The regulations came into force on 29 November 2012.
*Update - The draft regulations have now been published and here is some commentary from CMS Cameron Mckenna and some more from Pinsent Masons.
The effect of the draft regulations will be that if the section 73 consent does not result in an increased floor space compared to the original consent, then no CIL will be payable.
Developers will therefore have to take this into consideration if they want to increase floorspace.
The regulations are not retrospective and will only apply to section 73 consents issued after the regulations come into force.
It looks like one thing that hasn't been reformed is the complexity of the CIL regulations, which will dismay developers who are still likely to need specialist planning advice in many situations to steer them through this labyrinth.
UPDATE 18/10/12 The British Property Federation has warned London’s boroughs to take care when charging CIL or risk choking off development in the capital.
Liz Peace, chief executive of the BPF, told the GLA on 17 October: "There's no doubt if you set a high CIL you will scupper development...There's a fear CIL is being imposed on top of s106 agreements, rather than s106 being scaled back and CIL used to fund infrastructure in its place. This 'double dipping' needs to resolved."
UPDATE 5/12/12
The regulations came into force on 29 November 2012.
Photo by treehouse1977 via flickr
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