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Derek Ching
Derek Ching,
PARTNER
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How does an amended planning permission affect CIL liability?
30 January 2018

The imposition of Community Infrastructure Levy (CIL), the detail of which is contained within the CIL Regulations 2010, came into force on 6 April 2010. CIL is payable within any area where that LPA has adopted a charging schedule which contains set CIL rates. Under the Regulations the initial CIL rates set out in charging schedules are indexed in line with changes in building costs.

If the LPA has not adopted a charging schedule on the day that planning permission has been granted, no CIL will be payable. If a charging schedule is in force, CIL is payable when the planning permission “first permits development.”

In order to ensure that CIL is only charged on the increase in floor area (or the area affected by a change of use) arising from modifying the conditions in a planning permission under section 73 of the 1990 Act, the 2010 CIL Regulations were amended in 2012 and provided for a new Regulation 128A which deals with situations where (A) a planning permission is granted before the charging schedule came into effect and a (B) a new planning permission is granted after a charging schedule comes into effect. Therefore, CIL would be payable on the amended planning permission granted under (B) and the calculation would be: 

X – Y (X = the chargeable amount for the development for when B was granted; and Y = the chargeable amount for the development for when A was granted).

In effect a developer is to be given credit for the CIL on the already consented space.

New 2018 Regulations amend 128A to close what has emerged as a potential loophole which some charging authorities had argued allowed them to charge more CIL by only deducting the original CIL liability for the old proposed development (without applying any indexation for the period between the old and new planning permissions).

This meant that, in addition to paying CIL for the increased floorspace, a developer was also being asked to pay for the extra CIL that would have arisen as a result of the indexation of the original amount of CIL between the time of the first planning permission and the later Section 73 consent. This amendment stops this and therefore ensures that where a new planning permission has been granted under s73, CIL is only payable if there has been an increase in floorspace (or change or use) in comparison to that under the original planning permission. If there is no change in these, there will be no CIL payable under the new planning permission.

For further information contact Kinali Patel, Solicitor at [email protected] or Derek Ching, Partner at [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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