Feeding back to DCLG - Public forum - Planning Advisory Service (PAS)

Rebecca, In Shropshire, implementation has generally been successful. This has been aided by the approach taken in Shropshire to have only 2 charging zones (urban and rural) and to only charge for residential development has helped with the administration of the CIL levy. It has also been helped by the relatively low rate of Planning Applications received nationally. Specifying a NIL rate for Affordable Housing has also been a significant positive as it reduces the need to manage potentially complex applications for relief. A dedicated CIL team is also very important as they gain a detailed understanding of the likely issues that are to be experienced and learn how to respond as and when they occur. I would also highlight the benefit of an effective administration software that provides a clear audit trail of the management of CIL and ensures consistency in the management of each Planning Application. Shropshire use the Exacom system which has proved very effective. Another real advantage is including CIL Form 0 as a Validation Requirement for all liable applications, which reduces the need to chase an applicant/agent for a completed form. The main problems we have come across are: - The issue of identifying when a building is 'in use' for the purposes of CIL. - The implications of the BCIS All-in Tender Price Index which is used to index CIL every year but the figure we are told to use is only draft when first announced and can change in the next year. - The fact that an additional floor within an existing building (technically classed as a mezzanine) is not chargeable despite the potential significant resource/infrastructure implications. Any changes to the regulations to address these issues would be most welcome. In terms of the CIL Neighbourhood Fund the reaction from the community has been positive, although as we have already committed to providing 90% of the residual CIL (following the Admin and Neighbourhood Fund cost) for local infrastructure, as identified by local communities, so the communities accepting development were already going to benefit from development in their area. However, we are concerned about the administration of this Fund given the many different considerations: - Is it in an area with a formal Neighbourhood Plan or not? - If not how many Council tax paying dwellings are there, and when do we calculate this, annually, 6 monthly, for each application? - If an NDO is present in an area without an Neighbourhood Plan, does development within it (25% goes to Neighbourhood Fund) contribute to the total that can be received in the area £100 per Council Tax Paying dwelling, or not? I think there are a lot of questions that remain unanswered within the draft regulations and we could do with further guidance.Anything that simplifies this for the administrators would be most welcome. Hope this helps. Dan

Thanks very much Dan and Andrea, that's really helpful. If anyone else has comments, I'll add them to the list for the discussion tomorrow. I'll make sure to report back on DCLG's response after the meeting. Rebecca

A consolidated set of Regs asap please. Issues around the Boles Bung: Neighbourhood only needs a plan to get uncapped 25%. Not only does the plan not need to promote any more housing than already allocated, it doesnt have to say much at all; it just needs to exist. As CIL is only payable on market dwellings there is no incentive for a community to accept affordables, indeed there is an incentive not to.

One for Rebecca. Are you able to provide the promised report back on CIL matters re your end of Feb. DCLG meeting?

Hi, Apologies for the delay - I was waiting for the meeting minutes which I've now received. As it was a large roundtable discussion I unfortunately wasn't able to cover every issue raised above, and the nature of the group meant there was a focus on issues relevant to the voluntary and community sector. My notes of the discussion are as below: The statutory guidance will include some wording on "taking account of neighbourhood plans" - I raised the point about community engagement on planning through other means but as we know the Govt is very keen on neighbourhood plans so I'm not sure how much potential for movement there is. No word as yet on when the guidance/regulations will be published - I said that clarification asap would be welcomed. The issue of additional floors within a building not being chargeable attracted significant comment around the table. There was a strong feeling from VCS representatives that DCLG should look again at this, as it didn't reflect the reality of the situation if, for example, adding another floor in an ex-warehouse/factory building. DCLG officers seemed to take this on board. A couple of further points to note - these might be known already but I include them here for completeness: -DCLG reported that Bristol's CIL collection has been similar to s106 levels -once agreed, CIL cannot be re-negotiated -"infrastructure" includes social infrastructure, ongoing costs, and maintenance and repair -developments led by registered charities are exempt, but Community Interest Companies, social enterprises etc are not, although there is a limited amount of discretion available to councils in exceptional circumstances -for the community spend, there is nothing to stop councils agreeing to this being spent across council boundaries as long as it's agreed with neighbouring councils -Dan - your 90% commitment was mentioned positively by DCLG In the minutes, it's stated that "Mark Lee and team are happy to continue receiving feedback on how CIL is operating. Please direct your comments to cil@communities.gsi.gov.uk" I suggest this would be a good route for any of the more technical points raised above - I'm not sure how much you've been in touch with the team directly but Mark seemed very open to feedback. (How much change they'll commit to is another story of course!) Thanks again for your help, Rebecca

Rebecca, Thanks for a summary of discussions. Some very interesting points made, particularly in relation to DCLG's response to the issue of whether new floorspace within existing buildings is liable for CIL. I know this is an issue that many Authorities would like to see clarified. Thanks again. Dan

Just a couple of points on Rebecca's post on 15th March. Firstly, I understand that Bristol's CIL charging scheudule only came into effect in January this year so it's very early days there. Having spoken to Bristol on an issue late last year, possibly what she meant to say was that in excercises they had done, Bristol's prediction was that CIL collection would be similar to S106 levels. Secondly, she states that "infrastructure" includes social infrastructure, ongoing costs and maintenance and repair. Infrastructure is defined in the CIL Regs as including roads and other transport facilities, flood defences, schools and other education facilities, medical facilities, sporting and recreational facilities, and open spaces. Thus any spend of CIL on social infrastructure has to fit within that definition and, for instance, whilst the medical wing of a care home might qualify, I suggest that the bedstock would not. As for onging costs and maintenance and repair, the CIL Regs are silent on this. My assumption was that CIL funded capital costs alone, not a mixture of capital costs and costs in use, however I accept it's a moot point.

Don't forget the changes made by Localism Act s115(4) & mainly (5) which amplifies and allows for extended CIL use beyond just the provision of "infrastructure"

Good point. I'd ovelooked this and now accept that all of 'provision, improvement, replacement, operation or maintenance of infrastructure' is now included, so it's not a moot point. However, I don't see that social infrastructure extends beyond the definition I referred to above.

I am of the opinion that 'infrastructure' for the purposes of CIL etc is defined in Section 216 of the Planning Act 2008. This definition is not definitive i.e. it does not list each and every element making up the definition...it is open ended. Same applies to the definition/s in the CIL Regs etc. On this basis I believe it puts the onus on Charging Authorities to define and clearly set out what they intend to treat as 'infrastructure' whether that be 'physical' or 'social' infrastructure etc? Like Boles...I am of the opinion that 'infrastructure' can be what the hell we like...as long as we clearly set this out and communicate it...

I agree that 'infrastructure' for the purposes of CIL is defined in Section 216 of the Planning Act 2008 as amended subsequently by other Acts/Regulations. However, as far as I'm aware, the 6 broad categories I referred to above (4 of which are 'facilities') are the only categories of infrastructure defined in the legislation which can be funded by CIL. In this sense the definition is not open ended, although I accept that some of the 6 categories are open to interpretation as to what is included within them. Then again, other categories are very clear with little or no room for interpretation (e.g. it should be fairly obvious when an item of infrastructure is a flood defence) Take governance infrastructure for instance (council administrative offices and and the like) - this clearly does not fall within the definition and therefore cannot be funded by CIL and I suggest any charging authority that did so would be acting ultra vires. If CIL can be used to fund what the hell we like, surely the legislation would say so, and as far as I can see it doesn't. And to act as if it does say so when it doesn't could be said to be having contempt for the rule of law.

Hi Graham I intended my comments to be taken with a pinch of salt...everything within reason...and of-course - CIL reciept spend still has to be on infrastructure. I merely wanted to point out that there is room for interpretation and therefore the definition of infrastructure is not definitive. Up to 5% of CIL can be used to fund 'Governance Infrastructure', although I know this isn't what you meant... I am not aware of any amendments to S216 of the PA 2008 which alters (or clarifies) the definition significantly and hence stand by my opinion that infrastructure is everything and anything we choose to include within our own definitions (within reason)...not just the 6 categories to which you refer. The CIL Regs also use the term "including" which means they aren't definitive either... As for a 'law' which is open to interpretation...I couldn't possibly comment as I am not a legal professional.

Reg 63 of the 2010 CIL Regs removed a seventh category (affordable housing) which I have not referred to previously (because it no longer applies) and therefore there is an amendment to S216 of the PA 2008 which alters the definition of "infrastructure" significantly. Such an amendment is allowed under S216(3)(a) of the PA 2008 which permits the addition, removal or variance of an entry in the list of matters included within the meaning of "infrastructure". However, note that this has to be by Regulation, and not by whim and fancy. I therefore stand by my view that any charging authority which attempts to use CIL receipts to fund infrastructure outside of the 6 categories referred to in S216(2) of the PA 2008 as amended subsequently by other Acts and Regulations, is living dangerously.

Does that mean we cant use CIL to support libraries or deliver communications infrastructure, or to overcome electricity supply constraints, or provide a police beat base, perhaps a fire station? I am sure there are a few more potential calls on the CIL pot I could think of!

Well my reading of the CIL Regs tells me that you can't. There would appear to be 2 potential pitfalls: (1) an examiner finding fault with a CIL charging authority which proposes in its evidence submission to fund infrastructure which does not meet the definition of "infrastructure" under S216 of the PA 2008 as amended by other Acts and Regs, and (2) an authority who, once their Charging Schedule is approved and in force and they are collecting CIL, actually funds infrastructure that does not meet the definition. The first may lead the examiner to make recommendations that might might not give an authority the expected or desired outcome in respect if its CIL charging schedule. The outcome of the second is more difficult to predict but at the very least I would suggest that embarrasment would be caused to an authority if some bright spark claimed 'misappropriation of CIL revenue' following the publication of an authority's annual report which revealed CIL expenditure on items that did not meet the definition. I'm surprised that the definition isn't highlighted in the DCLG 2012 guidance, but it doesn't appear to be. However, the DCLG CIL Overview dated May 2011 states (clause 13) that the Regs rule out the application of the levy for providing affordable housing, which supports the point I made previously that if something (in this case affordable housing) isn't included in the definition, then the Regulations rule it out. However, the previous clause (clause 12) creates uncertainty by stating that the 'wide definition' of what can be funded includes 'district heating schemes and police stations and other community safety facilities' which I can't see come under the 6 categories referred to in the definition. There's an obvious contradiction here. My advice would be to play safe and stick to the definition which still gives plenty of scope to spend CIL recipts.

DCLG have always been very clear that s 216 uses the word 'includes' therefore this is not an exclusive list just some examples.

Just because DCLG see it that way doesn't mean it's right. One of the meanings of the word 'include' in my Collins concise dictionary is 'to have as contents or part of the contents; be made up of or contain'. So by that definition 'includes' could mean includes all the contents or includes just part of the contents. However, when you examine S216(3)(a) which permits the addition, removal, or variance by Regulation of an entry in the list of matters included within the meaning of "infrastructure", it becomes pretty clear that the intent is that the list of matters at S216(2) defines the meaning of "infrastructure". If the definition is open ended then what's to stop authorities using CIL to fund affordable housing? This has been removed by Regulation (Reg 63 2010 CIL Regs) from the list of matters in accordance with S216(3)(a) yet if one uses the logic that authorities are free to use CIL to fund what they hell they like, then unless there's a Regulation under S 216(4)(a) specifically stating that affordable housing is not to be funded by CIL (which I don't think there is), they can go ahead and fund it anyway. I'm sorry but I don't buy it.

It is a real pity we can't engender greater participation from legal professionals and DCLG civil servants on the forum! Presumably it wouldn't be too much to offer an opinion or to share what was actually going through the mind of the person who wrote the stuff in the first place...even if it exposes that the intention to be different to the outcome...or are people so scared of being seen to make a mistake they would prefer thousands of pounds of public money get wasted on legal advice and speculation??

Only a pebble but the ripples go on & on. Just a thought, but is affordable housing infrastructure? Was it ever, or is it just because the Government once said it was (& then changed its mind)?. Isn't it just a matter of planning policy. For me planning-related infrastructure is/are;- works (not governance!) needed to support the local economy/community. If in its very widest sense that includes affordable housing, then isn't all housing infrastructure? & is there anything that it its widest sense isn't infrastructure?

Hi - would it be helpful for me to go back to Mark at DCLG and ask him to clarify his comments? I don't want to set the cat amongst the pigeons based only on my meeting notes... I can also invite them to join the forums and see if that holds any appeal! Rebecca

Hi Rebecca Its not Marks comments per se which has triggered my involvement in this debate. From what I can tell he has merely reiterated what the guidance and Regs already say....its what they don't say which appears to be the issue here...? So rest easy! Would be good to see a few DCLG reps contributing to discussions though so thats worth a try in my opinion!

FYI all... The CIL Reg 2013 (Amends 2010 Regs Part 7) NB: not yet adopted into statute but clearly set out latest DCLG thinking on the matter... 59C (b) and 59F (3)(b) will allow Communities to use their 25% of CIL and Charging Authorities (where a community Plan is not in place), to use 15% of CIL to fund "(b) anything else that is concerned with addressing the demands that development places on an area". Assuming this makes it into Legislation I think "anything else" is pretty self-explanatory. I am trying to use this to fund more front line Police Officers.

Hello Jay Without wishing to resurrect the debate we have already had on this, I would argue that the proportion of CIL not handed to local communities i.e. the portion retained by the Charging Authority is also potentially open to funding posts (at the discretion of the CA). Others clealy disagree and I suspect, failing further clarification in the regulations, it would presumably have to be tested in a court of law? I am of the opinion that 'infrastructure' in its broadest sense is not purely physical/tangible stuff i.e. it could be something social e.g. knowledge hub or skills based e.g. police officer, environment officer, librarian etc...? Clearly it may be easier, until such time as this issue is clarified, to 'go after' some of the monies being handed-over to local communities?

On the one hand I think that Jay has a point here, but on the other I don't. On the positive side, I think that proposed Regs 59C(b) and 59F(3)(b), if and when enacted, partly turn my original argument on its head and I now partly agree with Simon to the extent that, in respect of the 25% or 15% of CIL receipts to which Regs 59A or 59 B apply, infrastructure will mean what the hell we like as long as it addresses the demands that development places on an area. However, on the negative side (and I admit I'm way out of my comfort zone here), what relationship is there (or will there be) between CIL and a police authority? Under the CIL Regs, a police authority is neither a charging authority or a local council and, as I understand that from 2013/14 all police authorities are to be be funded direct via the Home Office Police Grant Report, why should (or would) a charging authroity or a local authority be under any obligation to fund any aspect of the police, whether it uses CIL to do so or not?

Hi Graham My take on it is that it is at the discretion of the CA to decide how they spend the money; provided it is spent on infrastructure they consider necessary to accomodate the new growth planned in their areas? Agree there are some interesting questions to be asked of services which already recieve 'large' amounts of dedicated grant funding e.g. schools, health, police etc. but if the CA genuinely feels that additional police infrastructure would help accomodate new growth then I think it would be in their gift to allocate some CIL funding towards it. However, if the police are funded fully by existing direct government grant I think it would be unreasonable to expect developers to contribute via a CIL?

I've been following this debate with interest. I think it is clear that although the Government intends to give the Charging Authority quite a lot of flexibility as to what CIL funds should be spent on, it intends to give even more flexibility to local neighbourhoods. During a debate in the House of Commons Second Delegated Legislation Committee on 18th March, Nick Boles even indicated that neighbourhood CIL funds could be spent on affordable housing (see column 7 and 8): http://www.publications.parliament.uk/pa/cm201213/cmgeneral/deleg2/130318/130318s01.htm

Thanks Peter I see they dodged the question regarding the definition of infrastructure again...choosing to refer back to the (less than clear) regulations! Simon

Re Peter's post, as I said earlier I agree that the signs are that the Government intends to give near total flexibility to what 25% (15% in Wales) of CIL receipts can fund (under proposed 2013 Reg 59F(3)(b) this applies whether CIL receipts flow to a local council or not). However, I see no indication in the record of the debate on 18th March that this flexibility is to be extended beyond the definition of 'infrastructure' which has been hotly debated in the above posts.

Hi again, and thanks for your comments. LPA's are obliged under S.17 of the Crime & Disorder Act (1998) to consider crime reduction and the fear of crime in the exercise of all of their functions, including planning and plan making. Furthermore, crime is population lead and ACPO have released guidance stating that police resources should be increased commensurately with population growth to maintain the status quo (as at 2014 onwards, and therefore post Comprehensive Spending Review rationalisation). So, having established the LPA's duties, I would go on to say that Council tax receipts do not feed through to revenue funding Police immediately and there is an an 'impact mitigation gap' where the increased population demands additional policing resources, and which CIL should plug, in terms of staff recruitment and training, and three year revenue funding AS WELL as radio's bicycles, vehicles, uniform and lockers etc. The crux of it comes in though, where Simon is correct. I would not urge my Police Authority (now PCC) to incur high costs through the Courts (not necessary for sleepy Dorset) - especially when the final decision is firmly with the CA. So I'll take the path of least resistance, which means a more detailed assessment, more work, more expenditure for my client, and considerably more bureacracy in the short term than a simple formulaic approach based on a robust rationale. Planning eh!