This is entry number 18 of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

This blog focuses on the new regime for the authorisation of major infrastructure projects, but it is worth mentioning the other main feature of the Planning Act 2008 – the Community Infrastructure Levy (CIL), which is the subject of today’s entry. Its application to nationally significant infrastructure projects (NSIPs) is considered in particular.

Not surprisingly, CIL tends to be pronounced ‘sill’ rather than ‘kill’. It is a way of introducing greater certainty in the thorny area of new development having to pay for the infrastructure that would be needed to support it.

The principle is that each local planning authority will publish a ‘charging schedule’ of how much each type of development should pay towards ‘infrastructure’ according to its size, although it does not have to do so – this is a voluntary scheme. Developers will therefore know in advance how much they will have to stump up. The charging schedule will be subject to examination in the same way as development plan documents. The charge becomes payable upon commencement of the development. Even where the scheme is in place, CIL will not wholly replace section 106 agreements, the current ad hoc scheme for raising infrastructure contributions, but they may be prevented from being used to operate planning gain tariffs after a couple of years' operation of the CIL.

Application to NSIPs

The definition of ‘infrastructure’ that CIL can be spent on is different from the categories of NSIP to which the new authorisation regime applies. It includes, for example, schools, medical facilities and even sporting facilities, but does not include energy installations.

Two questions arise about the interaction between the two parts of the Act: could NSIPs be beneficiaries of CIL, and will they themselves have to pay it? Indeed, generally speaking will a development that receives CIL have to pay it as well?

Not all NSIPs are within the categories of ‘infrastructure’ on which CIL can be spent – transport is, but energy isn’t, for example. For those that are included, then CIL could be spent on them. Indeed, Crossrail, which could have been an NSIP if it had been promoted after 1 March 2010 and not by Act of Parliament, is explicitly a potential recipient of CIL according to the draft regulations.

On the other hand, the CIL Regulations contemplate that NSIPs will have to pay CIL, since they include ‘development consent’ under the list of permissions that attract CIL. There appears to be nothing to stop the same development paying and receiving CIL.

The government is currently consulting on draft regulations that flesh out the concept of CIL, with a closing date of 22 October 2009. The consultation details can be found here. This could be an opportunity to align CIL with the new authorisation regime more closely.