CIL and applications not determined prior to implementation - Public forum - Planning Advisory Service (PAS)

We introduced CIL on 18^th July 2016 and like many authorities we sought to determine as many applications with S106’s outstanding prior to the commencement date. We successfully determined these, except for one specific and unusual case, which was a second application on a site for which an appeal had already been lodged for an application for an almost identical scheme which is  soon to be considered by Inquiry.

The situation is that we had a completed S106 signed by all parties and a committee resolution to grant permission on 14^th July and were about to issue the permission, when we received a telephone call and subsequent email on 15^th July from DCLG saying they had received a phonecall asking them to consider a call-in and could we wait to issue the decision. As at 14^th September and the writing of this email we still have had no confirmation or formal holding request from DCLG.

The issue is therefore that the applicant could have reasonably expected to have received his permission prior to the introduction of CIL and has, not unexpectedly, queried the delay, which, is due to an informal request by DCLG.

As the S106 and committee resolution pre-dates CIL, the question is can the LPA continue with this application and seek education contributions through the signed S106 (which predates CIL and was signed by all parties before 18^th July) or is the scheme now CIL liable and the S106 now requiring modification to remove those elements covered by CIL (education primarily). There are increased cost implications of applying the CIL charge and above the amount already secured throughthe S106.

The regulations appear to be silent on this where all matters were ready to proceed to determination prior to CIL and indeed would have been determined if DCLG hadn’t intervened. We still have not received clarification from DCLG as to whether they do or do not intend to call in or issue a holding request and we wish to determine the application. This is the only case this authority has in these circumstances so no precedent would be being set.

Any advice would be great.

Thanks

Claire