Category Archives: Community Infrastructure Levy Charging Schedules

Out of date assessments no barrier to development plan or CIL Schedule

Challenges to a local planning authority’s adoption of a development plan document will rarely succeed. The task of testing the soundness of a development plan document is a matter for planning judgment, exercised within the relevant statutory scheme and against the background of relevant policy and guidance, rather than for the court.

In the Court of Appeal case of Oxted Residential Ltd v Tandridge District Council [2016] :the issue was: was it lawful for a local planning authority to adopt a development plan document and a Community Infrastructure Levy (“CIL”) charging schedule to underpin a core strategy prepared under national planning policy for housing land supply that had been superseded by the National Planning Policy Framework (“the NPPF”) in March 2012?

The first issue

In Gladman Developments Ltd. v Wokingham Borough Council [2014] Lewis J. had concluded that the inspector was “not required by reason of [the NPPF] to consider an objective assessment of housing need in order to assess whether this development plan document was sound”.

The Court of Appeal said whether a particular policy of the core strategy, or of the local plan was up to date within paragraph 49 of NPPF was a question that would arise in the making of a decision where an application had been made for planning permission for housing development – when it might be contended that the council is unable to demonstrate a five-year supply of housing land so that it’s “[relevant] policies for the supply of housing should not be considered up-to-date”.

So the council had not been required to consider an objective assessment of housing need before adopting the local development plan document.

The second issue

Given that there was no up to date local plan the appellant said:

1. it was impracticable for a charging authority to make a rational assessment of the need for infrastructure in it’s area.

2. Any calculation of the contributions to be made by developers in the form of CIL would depend on the amount of development properly planned for.

3. If there was no up to date local plan, with the required five-year supply of housing land, and the authority continued to rely on an out of date plan, the CIL charging schedule would bear no reasonable relationship to the infrastructure required or the source of contributions to that infrastructure.

Disagreeing the court said there was no statutory obstacle to the adoption of a CIL charging schedule when a relevant development plan document is, or may be considered, out of date in the light of subsequently issued national policy or guidance.

There is no requirement in the legislative framework which required a recently adopted plan to be in place before a CIL Schedule can be adopted, and there is no legal reason why a charging authority can only produce a CIL schedule if it has recently produced a plan.

Far from it being necessarily unreasonable for a charging authority to adopt a CIL charging schedule in such circumstances, it would often be the most practical approach to take

It had not been unreasonable for the examiner to accept the council’s argument that, although a review of the core strategy was now anticipated, in the meantime, it would be logical and sensible to have a CIL charging schedule in place to deal with the development planned in the core strategy as adopted, and to revise the CIL charging schedule in the light of the review of the core strategy, or earlier, under the legislative power to do so in section 211(9) of the Planning Act 2008.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Recent changes to the Community Infrastructure Levy on Developing Property

On 24 February 2014 the Community Infrastructure Levy Regulations 2010 (CIL Regulations) were amended by the Community Infrastructure Levy (Amendment) Regulations 2014.

Mainly and in brief:

Under the CIL Regulations Councils can already adopt differential rates of CIL in their district based on locality and the sort of development envisaged be it for example retail, employment or housing.

CIL can now be charged at differential rates based on the scale of the development allowed by the planning permission – for example, dependent on how much floorspace, or how many units are planned within the development. So smaller schemes may be charged at a lower rate.

The CIL Regulations say that the rates of CIL must strike a balance between the desirability of receiving infrastructure funding from CIL and the impact on the viability of development in the council’s district. At the same time too low a rate of CIL could amount to unlawful state aid to Schemes under EU rules.

– A new formula for calculating what CIL is chargeable, with changes to the ‘vacancy test’ to avoid charging existing floorspace to be reused or demolished in the course of the build.

Under the old rules, to qualify to be discounted in this way, such floorspace must have been in lawful use for a continuous period of at least 6 months in the 12 months immediately preceding the date on which planning permission first permitted the development.

That had nasty timing implications for any scheme that needed get vacant possession during a period less than 6 months prior to the existing buildings being cleared.

The vacancy test now gives greater flexibility:

– pre existing buildings being retained for uses already lawful without new planning permission will not be subject to the vacancy test; and

– for all other pre existing buildings that the developer wants to be discounted from CIL, the ‘vacancy test’ now requires them to have been occupied for six months in the three years immediately previous to the date when planning permission first allows the development (not 12 months as previously).

In the case of a full planning permission the ‘date when planning permission first permits development’ will be the date on which the planning permission is granted.

Under the old rules it was the date of satisfaction of the last pre-commencement planning condition.

For an outline planning permission, the ‘date when planning permission first permits development’ will be the date of approval of the last outstanding reserved matter to be approved.

Where a planning permission is phased, the ‘date when planning permission first permits development’ for each phase is to be separately determined. It will be either the date of approval of the last outstanding reserved matter to be approved for that phase or, if there are no reserved matters for that phase, the date when the last pre- condition to commencement is discharged in respect of that phase.

Where the demolition of existing buildings qualifies for a CIL discount under the vacancy test the benefits of that discount now be spread across the phases of the scheme.

Hitherto the CIL Regulations only permitted phasing on ‘outline’ planning permissions. Phasing has now been extended to ‘full’ planning permissions also.

– Exempting residential annexes and extensions

To be exempt from CIL residential annexes must comprise only one new dwelling that is built entirely within the curtilage of an existing dwelling.

To be exempt from CIL extensions to existing dwellings must not comprise a new dwelling.

– Exempting self-build housing.

To be self-build houses exempt from CIL, these must be built by a person for occupation by that person as their main residence.

The exemption extends to self-build communal facilities built to benefit more than one occupier of self-build housing.

A self-built house can still be a self-build house if built on their behalf by a builder or developer rather than through the physical work of the individual occupant.

If the dwelling ceases to be occupied by the self-builder within three years the exemption allowed for self-build housing may be clawed back.

– Measures to reduce the requirement for developers to enter into highway agreements where the relevant infrastructure could be paid for by CIL.

The CIL Regulations prevent a condition being imposed in a planning permission that would require a developer to carry out highway works where those works are infrastructure for which CIL is payable.

The CIL Regulations also limit councils’ ability to get developer contributions towards infrastructure through section 106 agreements to prevent developer being required to carry out or fund infrastructure under section 106 agreements in addition to having to pay CIL.

This now extends to highway agreements.

– Local authorities now have until 6 April 2015 to adopt a charging schedule before the use of planning obligations under section 106 agreements becomes limited.

Changes to the rules on social housing relief.

– Discount market housing sold at 80% or less of its market value now attracts a new discretionary relief.

– The types of social housing that qualify for automatic relief include discounted rent housing where the rental is no more 80% of market rate.

– Communal areas can get CIL relief where and to the extent that they are intended for use by occupiers of qualifying social housing.

Appeals procedure changed to allow time for responding to representations to be extended by agreement.

CIL can now be paid for in kind by the developer providing infrastructure in lieu of CIL payment so that the cost of the infrastructure would be taken off the CIL charge.

Infrastructure being provided anyway by the Developer under a planning obligation cannot be treated as payment in kind.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Examiner had wide discretion to approve Community Infrastructure Levy Charging Schedules for Developments

The Community Infrastructure Levy (“CIL”) enables a local planning authority to levy on development in its area to fund infrastructure. It stems from Part 11 of the Planning Act 2008 (“the 2008 Act”), as amended by the Localism Act 2011.

Regulation 14 of the CIL regulations requires the charging authority to make judgments setting rates in a charging schedule. It must strike “an appropriate balance” between:

– the desirability of funding necessary infrastructure and

– the possible effects of CIL on the viability of development.

Other questions to be considered are whether:

– it is desirable to fund the total cost of infrastructure wholly from CIL, or only in part;

– what infrastructure is required “to support the development of [the charging authority’s] area”, and when it will have to be provided;

– what other sources of funding there are likely to be; and

– the likely ability of development to bear the burden of CIL and still provide enough profit for developers to make it worthwhile.

These questions require judgment by the charging authority.

In Fox Strategic Land and Property Ltd, R (on the application of) v Chorley Borough Council & Ors [2014] the claimant, Fox Strategic Land and Property (“Fox”) was a large landowner in the north-west. It was promoting housing development and wanted to ensure CIL did not unduly reduce the value of the land.

Here it challenged the CIL charging schedule for residential development adopted by Chorley Borough Council (“Chorley”), and two neighbouring authorities.

The three councils consulted on their proposed CIL charges and then submitted their revised draft charging schedules for examination.

Fox objected to the proposed CIL rate which was £65 per square metre.

An examination into the submitted charging schedules was held by an examiner appointed by the councils.

Fox argued that if CIL were charged at that level it would threaten the viability of housing development in Central Lancashire.

The examiner concluded that the charge of £65 was justified.

Fox sought an order to quash Chorley’s charging schedule for residential development.

In rejecting that application the court said that was a claim for judicial review.

In such proceedings the court did not hear an appeal against the conclusions the examiner had reached.

A claimant could not:

– re-argue a case presented and rejected at a CIL examination, or

– pursue a case on the merits put forward for the first time, or

– pursue enhancements, in evidence and submissions made before the court but not made at the examination.

The court could not interfere with the examiner’s judgment on matters of valuation or planning merit. Its jurisdiction is confined to the ambit of public law i.e. whether the decision was within the range that a reasonable tribunal properly constituted could have made based on material considerations.

This blog has been posted as a matter of general interest. It does not replace the need to get bespoke legal advice in individual cases.