When the CIL Regulations commenced in 2010, we all breathed a sigh of relief that the Government had listened to the call for transitional protection for planning permissions granted before CIL is adopted in the relevant area. Regulation 128 makes this clear;
Subject to paragraph (2), liability to CIL does not arise in respect of development if, on the day planning permission is granted for that development, it is situated in an area in which no charging schedule is in effect.
The Regulations go further and recognise that, on a successful s 73 application, which may come along after CIL is adopted, a brand new planning permission is granted. S 73 permissions are intended to be protected by Regulation 9 (5);
Where planning permission is granted under section 73 of TCPA 1990, the effect of which is to change a condition subject to which a previous planning permission was granted by extending the time within which development must be commenced, the chargeable development is the development for which permission was granted by the previous permission
Of course it would be open to us all to argue that the effect of the s 73 permission is not to change a condition - but rather to grant permission for the same development but subject to different conditions. On that basis, Regulation 9(5) would never be engaged. But that would defeat the object of that Regulation and the intention is clear - and in any event, that is not the point I am raising in this blog.
What I am concerned about are s 73 permissions which do not even attempt to extend time, but rather deal with "variations" to other conditions. They do not appear to have any protection - and it is relevant to note that DCLG's October 2010 guidance on greater flexibility for planning permissions advises that when granting s 73 applications, no additional time should be given;
Where an application under s.73 is granted, the effect is the issue of a fresh grant of permission. A decision notice describing the new permission should be issued, setting out all the conditions pertaining to it. As a s.73 application cannot be used to vary the time limit for implementation, this must be consistent with the original permission.
So those CIL protection clauses in s 106 agreements still look appropriate.