Draft regulations amending the Community Infrastructure Levy ("CIL") Regulations were laid before Parliament on the 15 October 2012 and were published on 16 October 2012.

The principal changes relate to the removal of the so called ‘double charging’ regarding section 73 variations to a planning permission to ensure that CIL would not be payable twice for the same development. In addition, the regulations clarify the CIL position to confirm that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1 October 2012. The draft regulations also correct a Regulation 40 error in the calculation of the CIL levy for more complex sites which include the retention and demolition of buildings.

The main amendments to the regulations are summarised below.

Regulation 40

The amended regulations correct a mathematical error in the Regulation 40 calculation formula so that there will be no double counting or overcharging for development which involves both the retention of some  buildings and the demolition of others.

Removal of double charging

Under the current CIL Regulations, CIL may be payable on a s.73 permission as well as on the original planning permission. This is because a s73 consent is treated as an entirely new permission attracting its own CIL liability. This means not only that CIL could be paid twice in relation to the same scheme, but in addition that a scheme for which permission was granted before the adoption of a charging schedule by the relevant LPA could, upon amendment under section 73, attract
full CIL liability.  i.e. if you received planning permission for a development prior to the current CIL regulations coming into force but then wished to make a minor material amendment to the application via a section 73 application, then CIL could be chargeable on the whole scheme.

The new draft Regulations change this so that if a charging schedule is in place both at the time the original planning permission is granted and the time a s.73 permission is granted, CIL will be payable only once, subject to the application of a number of rules.

Replacement permission

A ‘Replacement’ planning permission i.e. a new planning permission which has been issued following an application for an extension of time to implement will not be chargeable for CIL.

'Replacement' planning permissions can be granted where the original permission was granted on or before 1 October 2010 and is still extant and unimplemented. CIL will not be chargeable where the original permission was granted before a charging schedule was in place and the replacement permission is granted (under Article 18(1)) when a charging schedule is in place.

Localism

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The Regulations are in draft form. The amended CIL Regulations are likely to come into force around mid-November 2012.

The draft Regulations are a positive albeit small step forward. The s73 issue in particular has been a matter of concern for some time and has been holding up progress on schemes where CIL is an issue. As such, the proposed amendments to the regulations are likely to be positively received by the development industry for this reason alone.

However, in our view the changes proposed do not go far enough and represent a missed opportunity to take forward what could and should have been a more comprehensive review. Other CIL problem areas including, the phasing of development, vacancy and part vacancy of sites and importantly ensuring the money is spent on items on the infrastructure deficit lists produced by LPAs remain at large and the impact of the amended provisions will remain to be seen in practice.