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.