CLG has just published its consultation on the next, and more substantial, phase of reforms of the CIL Regulations. These need careful reading but some highlights include;

  1. allowing differential rates to be set for different scales of development (as well as use and location as now). This will allow the approach of different rates eg for small retail vs large retail, small office development vs large. This will be welcomed by many local authorities but State aid will have to be avoided and the test will still be one of viability so if there is a differential rate based on scale, the viability evidence will have to back that up.
  2. the inclusion of the Regulation 123 list (ie the list of infrastructure which CIL will fund in the relevant area) in the evidence submitted to examination. This is not to remove the flexibility about how CIL can be spent, but so that it is clear what types of infrastructure s 106 contributions will not be collected for. Future revisions to the list would need to be subject to "proportionate" consultation.
  3. the date after which the collection of s 106 contributions will be further limited is to be moved from April 2014 to April 2015.
  4. treating s 278 agreements in the same way as s 106 agreements for some of the purposes of Reg 123. Currently s 278 agreements sit outside the CIL Regs so there is no restriction on their use but the proposal is that s 278 agreements should not be used for highway schemes which are included in the Reg 123 list.
  5. paying CIL "in kind" is currently only available for land transfers but the proposal is that this be extended to include on/off site infrastructure. There may be procurement issues here so one of the consultation questions is around whether the in kind contribution should be limited to the capital value limits in the EU Procurement Regulations.
  6. greater flexibility in the exceptional circumstances relief.
  7. changes for hybrid applications, commencement of development and the vacancy period (applicable in the case of CIL set off for current floorspace).

One of the issues flagged by the consultation is the extent to which the new provisions should apply to existing charging schedules and ones which are in consultation.

The closing date on the consultation is 28 May 2013. Prepare yourselves for more CIL talk!