S73 outline - CIL liability? - Public forum - Planning Advisory Service (PAS)
S73 outline - CIL liability?
Rebecca Randall, modified 8 Years ago.
S73 outline - CIL liability?
Enthusiast Posts: 60 Join Date: 06/05/14 Recent PostsHello
We are dealing with a major residential outline planning permission which was granted in 2013 and so far has no reserved matters approvals. We commenced charging CIL 01/04/2015. The developer would now like to submit a S.73 application to vary conditions on the 2013 outline. None of the conditions to be varied could affect the GIA.
I am struggling to apply the transitional arrangements within R.128(A) because I dont know what X or Y is.
When I look at R9(6) it states that where the effect of changing the condition will not impact on the chargeable amount, then the chargeable development is the development for which permission was granted by the previous permission as if that permission commenced i.e. revert to 2013 permission.
However, R.9(8) states that for the purposes of R9(6) the liability to CIL should be calculated in relation to the S73 as if the date on which the permission was granted first permits development was the same as that for the original permission. The date that first permits development is the approval of the last reserved matters, so it hasnt occured on either the 2013 permission or any subsequent S73.
Apparently, we cant vary the conditions using anything other than S73, for example a S.96 non-material amendment.
So, my question is, how do I deal with a S73 on a permission granted prior to the adoption of CIL? Does R.128 apply? Does R.9(6) apply??
HELP please!! Thank you for reading
Rebecca
We have not had to consider your scenario with an outline planning permission granted pre CIL but I cannot see that S128A of the Regs only applies to full and not outline permisisons, and therefore under the transitional provisions if a S73 application is made only additional floorspace will be liable for CIL - and the rest will remain under the S106 if any.
The difference would be calculated by looking at the original scheme as if it had been submitted in a CIL world, compared with the revised scheme. The difficulty with an outline application of course is that unless a viability appraisal was submitted with the outline no specific floorspace may be specified.
I will await others views with interest.
Alison
REBECCA STADDON, modified 8 Years ago.
RE: S73 outline - CIL liability?
Advocate Posts: 103 Join Date: 05/09/13 Recent PostsI have not had a scenario such as this but my logical thinking (which may not be appropriate!) would lead me to the conclusion that if the condition that is being varied does not relate to the GIA of the development then CIL would not be an issue?
I agree that Reg 128 cannot (logically!) apply to only full permissions.
I also agree that if the outline had all matters reserved and the S73 does not affect the GIA you have no floor plans with which to calculate the CIL.
Having spoken to a Planning Officer that deals with major applications I am advised that the S73 can sit alongside the Outline and not replace it.
In conclusion, I do not think the S73 makes the development CIL liable (but I could be wrong!).
Rebecca
Rebecca Randall, modified 8 Years ago.
RE: S73 outline - CIL liability?
Enthusiast Posts: 60 Join Date: 06/05/14 Recent PostsTHank you for your help so far. Yes I agree that there doesnt seem to be any distinction between outlines and fulls when it comes to applying R128A. Although there is a distinction between outlines and fulls when it comes to triggering CIL liability i.e. the day that first permits development, which for an outline is approval of final reserved matters.
I think its clear that a S73 application does trigger a CIL liability - as it would do for a S73 on a full. But the question is how to apply R.128A. I do not have a GIA for either the original 2013 permission or any subsequent S73. Bearing in mind there can be no change is GIA as a result of the condition that they are proposing to change, I could apply the R.128 calculation as follows:
X = CIL liability on S73
Y = CIL liability on original 2013 consent (date that first permits development hasnt occured yet)
X and Y will be the same in any event so the answer would be £0.
I'm not sure how this logic would apply to a S73 on an outline where the proposed changes could affect the GIA. Although having said this a) there arent many conditions on outlines which affect GIA and b) if there are proposed changes to plan nos, for example, then X and Y should be quantifyable and R.128 can be applied.
Any thoughts... anyone????!
Hi Rebecca. I'm sure you know so probably doesn't help but can't recall if 2 relevant Regs have appeared in this exchange. Reg 8(4) for an outline pp, pp 1st permits development on the day of the final approval of the last reserved matter & Reg 65(1) you don't issue a liability notice until after the day on which a pp 1st permits development, so it seems to me the issuance of CIL Liability Notice doesn't arise until final approval of the last reserved matter, & it's at this point when the Reg 40 calculation is made. Well that's how I read it!
Claire Burton, modified 8 Years ago.
RE: S73 outline - CIL liability?
New Member Posts: 20 Join Date: 12/08/13 Recent PostsThe regulations are not helpful in this scenario. We have had one or two cases and taken a pragmatic approach to this whereby if the the S73 is clearly changeing a condition and no floorspace then said liabile but zero - that was certainly the intention of the regulation.
On the point of liability notice, it is true that the regs state the LPA should issue a LN as soon as practicable after pp first permits development but that does not preclude it from happening earlier. A development is liable from getting planning permission.
Not an ideal response but hope it helps.
REBECCA STADDON, modified 8 Years ago.
RE: S73 outline - CIL liability?
Advocate Posts: 103 Join Date: 05/09/13 Recent PostsI agree with Tony. I don't issue Liability Notices at Outline approval, mainly because I don't have the information to do so!!
Liability Notices should be issued when planning permission first permits development.
Rebecca
Rebecca Randall, modified 8 Years ago.
RE: S73 outline - CIL liability?
Enthusiast Posts: 60 Join Date: 06/05/14 Recent PostsSo glad I'm not the only one confused! Here's what I think I've established so far:
1. A S73 on pre-CIL outline permission is CIL liable, because it is a planning permission (as defined by the Regs) granted after the CIL charging schedule has been adopted.
2. I should try to apply R.128A under circumstance (1) above, because whilst it doesnt seem to work very well, there is nothing in the Regs which tells me not to use it, and R.128A is the only part which deals with S73s specifically where the original permission was granted pre-CIL (I dont think R.9 does this).**
3. Because the S73 wont change the GIA, I should assume that by applying R.128A, even though I dont know what X or Y is, the answer will still be £0 (because X and Y are the same).
4. I should send out a letter explaining the situation to the developer if the now submitted S73 is approved, but I should send liability notices (of £0) upon the approval of the last reserved matters for each phase as and when this happens
** Ive just realised section 92 of the TCPA which covers outlines and reserved matters doesnt feature in the definition of planning permission under R.5. which is tricky because R.128A(2)a&b specfically refers to planning permissions
Claire Burton, modified 8 Years ago.
RE: S73 outline - CIL liability?
New Member Posts: 20 Join Date: 12/08/13 Recent PostsHi all - sorry if I have confused - i shouldnt have replied so quickly. I didnt mean that for an outline we would issue a LN - that is not the case and follow the same route as stated by others on that point. I meant the wording of that Regulation can be interpretated differently by legal advisors. I know some authorities do issue a LN very early but we are not one of those.
S73 is confusing but it seems that the sensible approach is being taken.
Sorry for my earlier adding to confusion :)
Alison Richards, modified 7 Years ago.
RE: S73 outline - CIL liability?
New Member Posts: 9 Join Date: 17/09/15 Recent PostsI wonder if anyone can help me.
We have a situation where a full planning permission was approved for a mixed use development prior to the Council charging comncing CIL charging. A Section 73 application may be coming forward for a minor material amendment with the size of the development remaining unchanged however the use would change from retail (for which we have no CIL charge) to a supermarket which is on our Charging Schedule. Am I correct in assuming looking at Reg 128 and Reg 40 that any increase in the floor area of the supermarket would be chargeable?
Thank you
Hi Alison. Reg128A refers to the difference between [the chargeable amount calculated for development B] minus [the chargeable amount that would have been calculated for development A] so they should incur a charge because of the change in use/charge, irrespective of whether there is a change in floorspace. Say new development B is [1000sqm @ £100] £100,000 and old development A would have been [1000sqm @ £0] £0 then the charge should be the difference between B-A = £100,000. If the unit is currently being built, so having already commenced, the resulting charge is payable in full immediately.