Community Infrastructure Levy (CIL) Regulations Explained

7th Edition for England
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6th Edition for Wales
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7th Edition for England
Download PDF by clicking here

6th Edition for Wales
Download PDF by clicking here

The authorities that have introduced CIL as well as for convenience are also set out separately in this document – List of Authorities. Part 1 of this list seeks to show the 165 authorities which have introduced CIL by the 1st September 2019. There is no central register and so reliance has to be placed on web searches and alerts to try to keep up to date. Some may have escaped this net so it is best to check the website of the particular authority if not on this list. Some are in the process of reviewing the existing CIL Charging Schedule and these are listed in Part 2. Others are in the process of introducing CIL but may reconsider with the removal of the pooling restriction.

List of Charging Authorities

The harsh nature of the CIL regime has been highlighted by the impact of Covid-19. Without change there was little scope for local authorities to mitigate the burden of CIL. In consequence the Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 have been introduced enabling certain developers to request the deferral of CIL which is not automatic but at the discretion of the authority to accept or refuse. The new deferral regime is not straightforward and the complexities of this new power are discussed in this article first published in the Local Government Lawyer.

Is it lawful to charge CIL by treating two planning permissions as a single planning permission? Charging Authorities have been concerned that a CIL liability could be reduced or avoided by splitting a development between a number of planning applications. The decision in R (oao Orbital Shopping Centre (Swindon) Limited) v Swindon BC [2016] EWHC 448 (Admin) shows that this concern was justified. If there had been a single planning application resulting in a single planning permission there would have been a CIL liability of just over £170,000. By making two planning applications there was no CIL liability.

This decision is considered in an article first published on the Local Government Lawyer website on 10th March 2016 – click here for a PDF

Phased planning permissions play an important role when the self-build housing exemption is sought in respect of multiple plots. In a recent statutory appeal decision, the local authority contended that phases comprising individual house plots had been commenced by the replacement of a boundary wall thereby preventing the self-build housing exemption from being claimed for each. The appeal failed and the reasons for this are discussed in this article first published in the Local Government Lawyer.

Oval Estates decision – this High Court decision is important not just as regards determining what constitutes a phased planning permission but also the effect of a non-material change under section 96A of the Town and Country Planning Act 1990. In addition, he has important dicta regarding the role of the CIL Liability Notice.

All these issues are discussed in this article first published with the Local Government Lawyer on 13th March 2020 – view as PDF.

Section 73 permissions have always posed problems for CIL. The more there are the more complex the CIL position. This article seeks to discuss the changes introduced by the new 2019 (No. 2) regulations with regard to section 73 permissions and was first published in the Local Government Lawyer on 30th August 2019 – view as PDF.

The Courts have considered section 73 permissions, planning conditions and planning obligations in four cases – Lambeth; Finney; North Norfolk Homes; and DB Symmetry. In doing so a number of planning issues which frequently have a bearing on CIL have been highlighted and these are discussed by Christopher in this article first published in the Local Government Lawyer – view here.

Many developers and self-builders have received unexpected CIL demands for sums they cannot pay. Such CIL liabilities should have been expected and with a degree of care and foresight might have been avoided. Often this is caused by the obtaining of retrospective planning permission to authorise works which have not complied with an earlier planning permission. The problems and possible lessons to be learnt are discussed in this article – view here as a PDF.

Work sheds – the application of the minor development exemption and the residential annex/extension exemptions to work sheds has thrown up issues and appeals which are discussed in this paper – view here.

Prior to the 2019 Amendments some authorities were requiring a commencement notice to be given before the start of the development. The validity of such a request was discussed in this paper – which was first published in the Local Government Lawyer.

“In-use buildings” – one of my earlier CIL articles was on this topic and the Hourhope decision. Eight years later it is still a topic which is giving rise to a lot of issues. The majority of the statutory appeal decisions under regulation 114  published recently concerned Kr(i) deductions and the points decided are set out in this article – view as PDF.

Giordano decision – the Court of Appeal has reversed the High Court decision so that a KR(ii) deduction can be claimed if the owner had the ability to bring about the same use as the intended use resulting from the development. It gives rise to an oddity and some complexities which are discussed in this article first published in the Local Government Lawyer on 22nd November 2019 – view as PDF.

“In-use buildings” – the crucial decision on this aspect of CIL is R (oao Hourhope Limited) v Shropshire County Council [2015] EWHC 518 (Admin). In the first judicial review case on the operation of the Community Infrastructure Levy Christopher appeared for the successful local authority, Shropshire CC. The authority had refused a claim for a demolition deduction. The Planning Court held that to qualify as an “in-use building” the building had actually to be in use and gave guidance on what would constitute use for these purposes. The decision serves to emphasise that a building needs to be in actual use if a deduction is to be claimed for CIL purposes. It will not be enough to have a caretaker or security guard looking after the building. A full consideration of the implications of the decision is to be found here.

CIL Indexation and variations of pre-CIL planning permissions before 1 Sept 2019

The position regarding indexation when the parent permission is pre-CIL and the section 73 permission post-CIL has been finally settled by the 2018 Amending Regulation. For those cases prior to the coming into force of the 2018 Regulation the decision of the appointed person which was the subject of judicial review proceedings should now be the final word as discussed in this paper first published in the Property Law Journal.

Section 73 planning permissions have been a continual problem in the operation of the CIL regime. The amendments in 2012 sought to avoid double CIL charges and to charge the section 73 permission only on any increase introduced to the development by the section 73 permission. A CIL appeal decision in January has had to consider an aspect of this in the context of a pre-CIL parent permission. In that case when applying the X-Y formula in regulation 128A an authority had determined the Ip figure in the indexation element of the notional CIL liability in relation to the pre-CIL parent permission by reference to the date of the grant of that parent permission which was prior to the introduction.

Inevitably indexation applied in that manner increases the CIL liability in relation to the section 73 permission. The appointed person held that even when calculating the notional CIL figure (Y) Ip should be determined using the date of the grant of the section 73 permission and not the date of the grant of the parent permission. This decision avoids the unfortunate CIL consequence that virtually every section 73 varying the conditions of a parent permission will give rise to an unexpected CIL liability purely due to the application of the indexation provisions. Indexation and Variations – click for PDF

Role of notices – the role of liability notices and demand notices has given rise to a number of issues. These have been addressed in two High Court decisions and are discussed in this article first published with the Local Government Lawyer on 19th August 2022.

Late service of CIL liability notice – the consequences of the late service of a CIL liability notice are not spelt out in the CIL regime.  The Trent decision held that such a late served liability notice was invalid but this is not always the case as was made clear in the recent Braithwaite case.  These cases are discussed in this article first published in the Local Government Lawyer on 2nd September 2022 – view as PDF. 

Appeal in Braithwaite case – following on from the article immediately above, the Braithwaite case went on appeal to the Court of Appeal.  The focus in the Court of Appeal was on revised liability notices and how a liability notice can be challenged and the hurdles overcome.  The appeal decision is discussed in this paper The CIL appeal in Braithwaite.

Oval Estates decision – this High Court decision is important not just as regards determining what constitutes a phased planning permission and the effect of a non-material change under section 96A of the Town and Country Planning Act 1990. It has important dicta regarding the role of the CIL Liability Notice. All these issues are discussed in this article first published with the Local Government Lawyer on 13th March 2020 – view as PDF. 

Many of the statutory appeals concern the issue of service. Care needs to be taken to ensure that effective service has been achieved in order to comply with the strict requirements of the CIL regime. The issue is discussed in this paper which was first published in the Local Government Lawyer on 12th April 2019. Update on self-build and statutory appeals on 4th April 2019 at 9th Annual CIL and section 106 Masterclass

Lessons for developers from CIL enforcement appeals

There have now been a substantial number of appeals against surcharges and demand notices. Few succeed. The most important point to come out of them is that many developers have not yet learnt that a working knowledge of the CIL regime and its procedures is crucially important. Gone are the days when a difficulty could be resolved by picking up the telephone. The CIL regime is inflexible and the administration is rigid. There is no ability to waive or relax the statutory requirements. There has to be compliance.

There are a number of lessons to be taken from the decisions which are covered in this article – click for PDF

The results of five appeals to an appointed person in relation to CIL have been posted on the VAO website but with every item of information which could possibly identify the individuals and property removed plus more. It makes the decisions hard to read let alone understand. They are concerned with fairly basic points –

(a) Conversion of house to two flats;
(b) Delayed grant of planning permission;
(c) new build less than 100 square metres;
(d) Class C3 use (residential).

Judicial review applications – the Oval Estates case will have a significant impact on the extent to which judicial review applications may be used to challenge CIL decisions.

This is discussed in this article first published with the Local Government Lawyer on 6th March 2020 – view as PDF.

Giordano decision – the Court of Appeal has reversed the High Court decision so that a KR(ii) deduction can be claimed if the owner had the ability to bring about the same use as the intended use resulting from the development. It gives rise to an oddity and some complexities which are discussed in this article first published in the Local Government Lawyer on 22nd November 2019 – view as PDF.

Is it lawful to charge CIL by treating two planning permissions as a single planning permission? Charging Authorities have been concerned that a CIL liability could be reduced or avoided by splitting a development between a number of planning applications. The decision in R (oao Orbital Shopping Centre (Swindon) Limited) v Swindon BC [2016] EWHC 448 (Admin) shows that this concern was justified. If there had been a single planning application resulting in a single planning permission there would have been a CIL liability of just over £170,000. By making two planning applications there was no CIL liability.

This decision is considered in an article first published on the Local Government Lawyer website on 10th March 2016 – Click for PDF

Demolition deduction – R (oao Hourhope Limited) v Shropshire County Council [2015] EWHC 518 (Admin) was the first judicial review case on the operation of the Community Infrastructure Levy Christopher appeared for the successful local authority, Shropshire CC. The authority had refused a claim for a demolition deduction. The Planning Court held that to qualify as an “in-use building” the building had actually to be in use and gave guidance on what would constitute use for these purposes .The decision serves to emphasise that a building needs to be in actual use if a deduction is to be claimed for CIL purposes. It will not be enough to have a caretaker or security guard looking after the building.

A full consideration of the implications of the decision is to be found here – click for PDF

Too many owners and developers are suffering CIL liabilities which could have been avoided. Inevitably this raises issues as to the standard of advice that they are being given on CIL by their advisers.

This raises the question of professional negligence which is discussed in this paper, first published on Lexology in March 2019.

The Community Infrastructure Levy (Amendment) Regulations 2014 introduced the exemption for self-build housing. This is discussed in Amendments to Community Infrastructure Levy – work in progress or overload? February 2014 Corporate Briefing

The Community Infrastructure Levy (Amendment) Regulations 2014 introduced the exemption for self-build housing. This is discussed in Amendments to Community Infrastructure Levy – work in progress or overload? February 2014 Corporate Briefing

(1) Post 31st August 2019
(2) Pre-1st September 2019
The expectation was that with the introduction of the CIL regime there would be a managed reduction in the use of section 106 planning obligations. These obligations would not be wholly replaced but reliance on them would be greatly diminished. Future funding of infrastructure would in the main come from CIL receipts.

Planning obligations would focus on affordable housing and infrastructure directly relating to the proposed development homes.

To help achieve this objective a number of limitations were introduced in the CIL regulations:-

1. Reg. 122 – enacted the policy guidelines previously in Circular 05/05 requiring planning obligations to be necessary, site specific and fair and reasonable;
2. Reg. 123(2) – prohibiting a planning obligation which funds or provides infrastructure on the authority’s Infrastructure List;
3. Reg. 123(3) – the pooling restriction.
   The actual outcome has been very different from the expectation in that:
4. Authorities that have not introduced CIL are facing infrastructure funding deficits;
5. The application of these limitations is complicated and creating considerable uncertainty;
6. The pooling restriction is preventing planning obligations being used to overcome planning objections;
7. Grants of planning permission are being put at risk
8. Fewer developments will be carried out and fewer houses built.

The important subject of the impact of the limitations in reg. 123 of the 2010 CIL Regulations on section 106 planning obligations was considered more fully in a paper which comes out of a series of presentations given at seminars on section 106 planning obligations put on by the Planning Advisory Service and the latest version of the presentation up to date to 11th March 2016 was to be founded on the PAS website. A presentation give by Christopher Cant on this subject can be found here.

The increased application of the pooling restriction resulted in shortfalls in infrastructure funding with uncompleted funding pools and uncertainty over the outcome of planning applications. How local planning authorities responded to this was considered in “Coping with an infrastructure shortfall due to the pooling restriction” first published on the Local Government Lawyer website in February 2016.

Current planning obligation issues were not, however, restricted just to the operation of reg. 123. A developer could not avoid payment of a pooled contribution due under a planning agreement by claiming that it did not comply with the requirements in reg. 122 of the 2010 CIL Regulations. Yet switching planning permissions to avoid making such a pooled contribution could be successful. On this issue the recent Court of Appeal decision in R (oao Robert Hitchins Limited) v Worcestershire County Council and Worcester City Council [2015] EWCA Civ 1060 is considered in this article.

“A further battle over a pooled contribution” and a summary was published on Lexology under the title “Switching planning permissions – challenging pooled contributions“.