There have been a few questions over CIL but a couple have now been clarified by informal talks and letters between The Law Society and CLG. David Brock, chair of the Law Society's Planning & Environmental Law committee, has been leading on this.
Q1 Does the codification into law of the policy tests for planning obligations apply to all development or just CIL development?
A Just to CIL development, ie, anything done by way of or for the purpose of creating a new building or done to or in respect of an existing building. So the tests are not codified for, eg, a pure landfill, minerals or landscaping permission, or a change of use not relating to a building. This could be helpful.
Q2 Is the codification intended to apply to permissions granted on and after 6 April 2010 (when the regulations came into force) pursuant to resolutions passed before 6 April, despite the fact the content of the regulations was not known before 26 March?
A Yes. So it will be important to check that the s.106 agreement for such a permission and the resolution both comply with the tests. Failure will render the permission vulnerable to judicial review at the least.
CIL - some obscurity
The above article provides some useful clarity, but there are, however, still some important problems without answers.
Problem 1 This concerns the anti-tariff provisions. Once a charging authority brings CIL into effect, it cannot use a planning obligation to fund an infrastructure project or type of infrastructure if five or more planning obligations funding that project or type of infrastructure have already been entered into. And whether or not they introduce CIL, this restriction takes effect on 6 April 2014. The idea is that an authority can use a tariff funded by a limited number of obligations. But this bites on all s.106 agreements in an authority which has introduced CIL (or after 6 April 2014), whether or not they relate to a tariff. So we need to be able to find out if there are five or more obligations? How will we do this? One agreement may contain many obligations and there is no register of all planning obligations. The consequence of getting this wrong is the risk of invalidity of the permission.
Problem 2 If a charging authority cannot collect CIL which is due (eg, because the developer becomes insolvent) or if no-one assumes liability, the authority can collect the CIL from the owners of the land within the red line of the planning application. However, it is common for planning applications to include land which is not in the control of the developer. And, by the time the permission is implemented, not all landowners will have concluded, or want to conclude, agreements with the developer to sell their land. Under CIL however, they may want to think again, because if they do not sell and the developer goes into liquidation they will be liable to pay an apportioned part of the CIL.
CLG has been alerted to these issues. Ministers are considering generally what to do with CIL but there is no date for an announcement. The best indication is that something will come out during the autumn (which in Westminster ends around about 31 December).