The CIL rate charged on RES matters applications - Public forum - Planning Advisory Service (PAS)

I'd go by the date on the Res Matters permission, as the development couldnt lawfully take place until then.  

I believe that it needs to be the original permission date for the outline as that is the planning permission.  There is a difference where there is a S73 and the notional amount increases but otherwise your planning permission date for the principle agreement, not first permits development date which is linking to when the Liability Notice should be issued, should be used

I've just checked a couple of applications in Exacom and both have used the Index figure from the date of the Reserved Matters approval.

Exacom defaults to the IP rate for the date of decision.  However, the CIL Regulations clearly state that: - IP = the index figure for the calendar year in which planning permission was granted;  a reserved matters approval is not a planning permission under regulation 5.

Regulation 8 identifies when planning permission first permits chargeable development. Regulation 8(3A) provides that the date on which a phased development forming part of an outline planning permission is first permitted is the day on which final approval is given for the last reserved matter associated within that phase (Regulation 8(3A)(a)(i)); or if earlier, (and agreed by the CIL collecting authority) the day on which final approval is given under any pre-commencement condition associated with that phase (Regulation 8(3A)(a)(ii)). Where an outline permission is not phased then Regulation 8(4) provides that planning permission first permits development on the final approval of the last reserved matter associated with that permission.

Since each phase of an outline permission (even if it is a single phase development) is treated as a separate chargeable development, which is first permitted on the date that the final approval of reserved matters is given for that phase, then BCIS CIL Indexation will be applied between the year in which the relevant charging schedule took effect, and the year that that final reserved matter is consented. Alternatively, BCIS CIL Indexation will be applied between the year in which the relevant charging schedule took effect, and the date (if agreed) on which the final pre-commencement condition is discharged for that phase, if this precedes the date of the final approval of reserved matters for that phase. In other words, the BCIS CIL Index is not applied when outline permission is granted. 

From: https://www.nortonrosefulbright.com/en-gb/knowledge/publications/6f60c1ee/applying-bcis-cil-indexation-to-outline-permissions-and-phased-development

I have seen this article before but not sure I agree with this.  The planning permission as referenced in Reg 40 Sch 1 is defined differently to the first permits development date.   I would be interested to know if there is more on this.

I agree with Claire and from working on this and with several councils my understanding is different to that suggested in the article by Norton Rose Fullbright and so I would be very careful when interpreting this in the legislation.

Firstly my interpretation, and one of many councils, is that the relevant Ip is the date of the planning permission and not the first permits date. I’ve always taken this view because otherwise the regulations would specifically say the date on which the planning permission first permits development. 

Secondly, whilst the above article suggests otherwise I do not agree as the definition of Ip in Schedule 1 refers to the year in which planning permission was granted, not the year in which the chargeable development was granted (which is the reserved matters application). The CIL regs define planning permission.

Sulina - I think you have updated your message to say you have asked Exacom and that they agree with Norton Rose Fullbright.

I can't stress enough how careful you need to be here and having worked at PAS with numerous councils on this issue, as well as implementing CIl at my former LPA, this is not the position many of us take. I am also aware of a council refunding CIL payments because of this matter, with legal advice confirming this as the right approach.

Can I suggest that you take your own legal advice and in the meantime I'll get in touch with Norton Rose Fullbright and Exacom.

Thanks Sulina.

The key is the definition of planning permission and as mentioned by Claire above a RESMAT in itself is not a planning permission, it is a condition of an outline planning permission.

Here is reference to case law that endorses this:

The Court of Appeal, in R (on the Application Of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359 concluded that the approval of reserved matters is not, itself, the grant of a planning permission and that an application for such approval is not, itself, an application for planning permission.

This is key in this debate as the regulations do not refer to the date the chargeable development (in this case the RESMAT) was permitted or the date that the planning permission first permits the development. They simply refer to the year in which the planning permission was granted. The planning permission in this case therefore being the outline permission.

Happy to chat offline if helpful, my email is rachael.ferry-jones@local.gov.uk