Community Infrastructure Levy: Procedural Pitfalls, Section 73 And Retrospective Applications

Author:Mr John Gregory and Rebecca A Mushing
Profession:Wright Hassall LLP
 
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The Community Infrastructure Regulations 2010 were introduced with the aim of providing a fairer, faster and more transparent system, and reducing reliance on Section 106 planning obligations which, by common agreement, can cause significant delay in the grant of planning permission.

With the consultation on developer contributions now closed, we take a look at some common issues arising from the present regime.

Landowners beware!

To benefit from reliefs, exemptions, and the option to pay by instalments, a party must have assumed liability for the levy.

However, in the event of default by that party, payment must be made by the landowners. Appropriate indemnities should therefore be considered when acquiring an interest in land subject to outstanding CIL liabilities.

Deadlines are deadlines

The system is rigid and there's not much room for flexibility.

Particular difficulty has been caused by the requirement that a commencement notice is served on, and received by, the Local Planning Authority (LPA) at least one day before development commences. Recent appeal decisions have made it clear that the onus is on the applicant to ensure that the notice is not only served but also received by the LPA.

The consequences of failing to serve a commencement notice can be severe, including the imposition of a surcharge and, critically, the loss of exemptions or reliefs. The LPA has little or no flexibility to waive these deadlines. When applying for reliefs, note that development must not be commenced until the LPA has formally notified the applicant in writing of its decision as to whether or not the relief is granted - failure to comply results in the relief being lost - even if the decision was to grant it!

Where is my money spent?

The LPA is required to have in place a Regulation 123 infrastructure list which sets out what CIL receipts are to be spent on. However, there is no further requirement for transparency.

Where there is a negotiated Section 106 obligation it should at least be clear what the monies received are being spent on and there will usually be some link (however remote) between the payment and the proposed development.

CIL monies can be spent on anything on the Regulation 123 list but if the money is not spent, there is no mechanism for repayment.

SECTION 73 PERMISSIONS AND RETROSPECTIVE APPLICATIONS

Some provisions that appear to be causing most difficulty are those relating to permissions granted pursuant to variation of conditions...

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