Re: Existing Planning Permissions' CIL Liability - Public forum - Planning Advisory Service (PAS)
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Re: Existing Planning Permissions' CIL Liability
CIL liability is calculated by reference to the time when planning permission first permits the development (as a result of which the levy becomes payable) - Planning Act 2008 s208(6). The CIL Regs determine the time at which planning permission first permits the development - Planning Act 2008 s209(6). The CIL Regs (2010, Regulation 8, as amended by the 2011 Amendment Regulations) state that in the case of an outline permission, development is first permitted on the day of the final approval of the last reserved matter associated with the permission. Where the planning permission permits the development to be phased, planning permission first permits each phase on the day of the final approval of the last reserved matter associated with that phase. In the case of the grant of a planning permission which is not an outline permission, development is first permitted on the day on which final approval is given in relation to any condition requiring further approval to be obtained before development can commence. Does this mean that developments that already have 'planning permission' will be liable to pay CIL if they have reserved matters or conditions outstanding at the date on which the Charging Schedule comes into effect? In this sense, does CIL apply retrospectively? If it does apply retrospectively, the implications are significant. In extreme cases, there could be developments with 'planning permission' which pre-dates the CIL Regulations coming into effect in April 2010, but with reserved matters or conditions which are outstanding at the date on which the Charging Schedule comes into effect? There could be developments with 'planning permission' and an associated Section 106 agreement which pre-dates the Charging Schedule coming into effect, to which CIL will apply retrospectively? Assuming there are, could these be given discretionary relief in exceptional circumstances (assuming they meet the relevant criteria)? What about those developments that don't meet the criteria (see para. 71 onwards of May 2011 CLG CIL Relief Information Document at http://www.communities.gov.uk/publications/planningandbuilding/communityinfrastructurerelief) Can someone tell me if I've missed something important (i.e. that I'm wrong)? Any advice / thoughts would be gratefully received thanks!
Claire Burton, Addaswyd 12 Years yn ôl.
Re: Existing Planning Permissions' CIL Liability
New Member Postiadau: 20 Dyddiad Ymuno: 12/08/2013 Bostiadau diweddar
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CIL liability is linked to the date of planning permission. The date planning first permits development is used to determine the charging schedule rates used in calculation the liability at Reg 40, amongst other things. So, in the scenarios that you have highlighted that have planning permission prior to a charging schedule being approved but not had their pre-commencement conditions/reserved matters approved they will not be liable. This is clarified at Reg 128 regarding transitional provision where it refers to the planning permission and not the first permits development date. Hope that helps.
Thanks Claire, so I think what you’re saying is that there’s a distinction between the date on which planning permission is granted, and the date on which planning permission first permits development to commence? And that if planning permission is granted before a Charging Schedule is in effect (Reg 128), the development is not / will not be liable to CIL, irrespective of whether there are reserved matters or conditions that have not been approved to provide for the development to commence? I think your answer to both questions will be 'yes', but it would be good if you could confirm that. Thanks again Claire, Peter
Claire Burton, Addaswyd 12 Years yn ôl.
Re: Existing Planning Permissions' CIL Liability
New Member Postiadau: 20 Dyddiad Ymuno: 12/08/2013 Bostiadau diweddar
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Yes that is correct. The only issue arises if a Section 73 application is submitted and then that is a whole new permission so if approved once the charging schedule in place would be CIL liable under the CIL regs as they currently stand.
Julie Greer, Addaswyd 12 Years yn ôl.
Re: Existing Planning Permissions' CIL Liability
New Member Postiadau: 8 Dyddiad Ymuno: 20/10/2011 Bostiadau diweddar
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This is the response I have had from the council. It seems to me ridiculous that over-stretched Council's are suggesting that applicants reapply when and if the regulations change. The development discussed below was for 4 houses that did not attract Sec 106 in the first place, now suddendly attracts 49k over 5 sq m. Are they right? Can anyone help? "The original calculation was conducted by, our Senior Planning Support Officer. I conducted the review, as per the regulations. We are required to respond to you within 14 days of receiving your request dated the 11th May 2012 and this is our formal response to your request. Calculations The application whilst a variation to condition number 2 (S73 application), was technically a new permission for the entire development. Therefore the existing and retained floor space amounts were determined as zero, as there is no existing floor space for 6 of the last 12 months in lawful use. The proposed floor space is the total floor space for the development for which planning permission is being granted, in this case the total floor space for the new permission is 1409sqm. As existing and retained floor space is zero, the chargeable floor space is 1409sqm. The current Mayoral CIL rate is £35sqm, £35 x 1409 = £49,315.00 Mayoral CIL. Regulation 128 would not apply as this is technically not a variation of a permission but a new permission. I therefore concluded that the calculations and amounts set in the Mayoral CIL Liability Notice dated the 14/04/2012 are correct and stand. S.73 applications We are lead to believe by DCLG that it was not their intension to capture S.73 application in CIL Regulations and they are likely to proposed amendments to the CIL regulations at the end of this year. Although this has not been confirmed, if it were the case and you reapplied when the Regulation had change there might not be any CIL Liability. Applications If your client is implementing the application at the moment then the amount is due and your client should submit a Commencement Notice to us asap. If your client is implementing the original application then CIL would not be liable. Could you please confirm which application is being implemented."
Hi Julie Did you ever manage to resolve this issue on your S73 application ? I have excactly the same situation on a scheme in London where CIL completely cripples the development. The application is for a variation to a condition on the details of the access. Martin Friend Director Vincent and Gorbing
Can anyone clarify the meaning of the phrase "First permits"? When you calculate CIL, you take into account the floorspace in lawful use 12 months previous to the permission that "first permits" the development. In terms of a s73, is the permission that "first permits" the development the parent (full) application (so the existing/demilished floorspace is that prior to the parent application), or is the permission that "first permits" the development the s73 (so the calcs will be based on existing/demilished floorspace in use 12 months before the s73). All help greatfully received! Rich
Regulation 8 defines what is meant by "the time at which planning permission first permits development". S.73 permissions are new stand alone permissions and so it is not correct to think in terms of a "parent" permission. The Government seems to be acknowledging that there is an issue with s.73 permissions and we are being led to believe that the matter will be addressed by the "policy" Amendment Regs that should be coming into effect in "the new year"!
PS...the New Year is it now? I was told the end of this month Annoying how these things slip... Thanks again
Richard, The 2012 Amendment Regs will indeed come into effect shortly, but they only deal with technical matters or "mistakes". Further Amendment Regs dealing with "policy" issues are due in the New Year, or so I understand!
Therefore, supposing the development has been built out, and has been in use for at least 1 year, but a (post development) condition not related to floorspace is varied, this would mean the "Existing Floorspace/Floorspace for demolition" that feeds into the CIL calculation would be that of the existing built, lawfully used development, meaning that the exsiting and proposed floorspaces in the calcs would be identical, with the effect that a CIL would, in effect = £0? Thanks