I started the week in the realisation that, having returned fresh from my holiday, I simply could not put off any longer reading the consultation paper on CIL and the draft regulations. There are lots of points to note and we'll be reporting on these going forward (as well as preparing a set of consultation responses), but one point stood out for me - this is the way in which CIL relates to development where the relevant planning permission may be issued before CIL is adopted in the relevant area, but where the regulations treat the "time at which planning permission first permits development" (Reg 8(4)) as being after the adoption of CIL.
On my reading of the regulations, development is not "chargeable" for CIL purposes unless a charging schedule is in place at the time planning permission first permits the development. That matches the Government's assurance, reflected in the consultation paper that "planning permission which is granted prior to a CIL charging schedule coming into effect will not be liable" (Consultation paper para 4.19).
However, the way in which draft regulation 7 works means that the "first permits" date for outline permissions is the date of final approval of the last reserved matters application and, for full permissions, where conditions require further approval before development can commence, it is the day on which the final approval is given. The logic of this must be that until all relevant pre commencement approvals are given, the benefit of the permission cannot be fully enjoyed.
But in order to obtain planning permission, the landowner and developer may have had to enter into a section 106 obligation guaranteeing e.g. a set of financial contributions. If CIL is brought in after the grant of permission and completion of the 106, but the "first permits" date is after CIL is effective in the area, then it seems to me that the development is caught by CIL as well as being burdened by the 106.
I spoke to DCLG about this yesterday and they assured me that the intention is to exclude pre existing permissions so they have asked me to set this point out in detail in our consultation response. They did also say however that "it will depend on what the 106 says" which confused me somewhat.
For the time being the safe course must to seek CIL protection clauses in 106s to avoid any risk of double liability. We have had a couple accepted by local planning authorities recently so they are alive to the issue. This will not assist where the 106 has already been completed and the permission issued - here I would encourage readers who agree with the point to make a response on the consultation paper.
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