We heard from DCLG before Christmas that they are on track to introduce CIL on 6 April this year. So it's a concern that there does not appear to be any movement from them over the need for transitional provisions to protect planning permissions granted before then. As the draft regulations stand, CIL is payable on commencement of chargeable development, whenever the planning permission was granted. Regulation 8 tells us that development is not chargeable unless a charging schedule is in effect when the permission first permits development which sounds comforting. Then we read that in the case of outline permission development it is first permitted when the final reserved matter is approved. That could be a few years away, by which time there could well be a charging schedule in place. As the permission could have had a section 106 agreement and CIL can cover similar ground, the landowners could end up paying twice.
We have raised this with DCLG in our response on CIL. So has the Law Society's Planning and Environmental Law Committee, which is chaired by David Brock. So has the British Property Federation. But there are no comforting noises coming out of DCLG. In practice therefore we are advising landowner and developer clients signing section 106 agreements at the moment to seek a covenant from the council to refund any CIL which is charged in future on that permission. We advise our local planning authority clients who are invited to accept such a clause to consider very carefully what the Treasury's attitude would be to a council which agreed that. We're continuing to pursue the matter through the Law Society. If you are concerned, you may wish to join us. Miles Gibson leads the team at DCLG on CIL and his email address is Miles.Gibson@communities.gsi.gov.uk