A number of people have asked me about differential rates in light of the decision, by Borough of Poole to scrap plans to charge different CIL rates for large retail development than for small. That decision followed representations by a major retailer drawing attention to the wording of the Regulations which refers to differential rates "by reference to ...use" - the argument being that the size of the retail unit does not affect use.
It will be interesting to see how this pans out. I hear there are plans to introduce amendments to the regulations, but how these will come through is not clear. There are state aid issues in all of this, and it is recognised that any cut off point in terms of the step up to a higher rate will often be quite arbitrary. Also it is not only retail development which is likely to be affected - some councils are bringing forward charging schedules which show a higher rate for low rise, or student residential.
In both cases (large retail vs small, high rise vs low, student resi vs family) there seems to be agreement that there are differences in viability - but translating that into a difference in use is the problem. Of course a number of charging schedules have been adopted with these differential rates in them - and others are still coming through. So what happens when a large retailer is asked to pay at the higher rate? Can he claim the charge is ultra vires and refuse to pay? If so, can the small retailer do the same?
Interesting times ahead for CIL I suspect and that's before we hear back on the consultation around including affordable housing within CIL!