73A.—(1) If a charging authority has made infrastructure payments available in its area it may accept one or more infrastructure payments in satisfaction of the whole or part of the CIL due in respect of a chargeable development.
(2) An infrastructure payment is the provision of one or more items of infrastructure by a person (P) who would be liable to pay CIL in respect of a chargeable development on commencement of that development.
(3) Where CIL is paid by way of an infrastructure payment the amount of CIL paid is an amount equal to the value of the infrastructure provided.
(4) Paragraph (1) is subject to the following provisions of this regulation.
(5) A charging authority must aim to ensure that the infrastructure provided through an infrastructure payment will be used to support the development of its area.
(6) A charging authority may accept an infrastructure payment relating to infrastructure to be provided outside its area if it considers that the infrastructure will support the development of its area.
(7) A charging authority may not accept an infrastructure payment unless—
(a)it is satisfied that P—
(i)has, or is likely to have, sufficient control over the land on which the infrastructure is to be constructed to enable P to provide the infrastructure, and
(ii)has provided the charging authority with evidence that P has obtained, or will be likely to be able to obtain, any relevant statutory authorisations that are necessary to enable the infrastructure to be constructed;
(b)it is satisfied that the infrastructure to be provided—
(i)is relevant infrastructure, and
(ii)is not necessary to make the development granted permission by the relevant permission acceptable in planning terms;
(c)the infrastructure will be provided to the charging authority or a person nominated by the charging authority (with that person’s agreement);
(d)P has assumed liability to pay CIL in respect of the chargeable development; and
(e)an agreement to provide the infrastructure is entered into before the chargeable development mentioned in paragraph (2) is commenced.
(8) The agreement mentioned in paragraph (7)(e) must—
(a)be in writing;
(b)state the value of the infrastructure;
(c)state the date by which the infrastructure is to be provided and provide for payment to the charging authority of—
(i)the CIL cash amount, and
(ii)interest,
in money if the infrastructure is not provided by that date, or in accordance with an agreed extension to that date; and
(c)must satisfy the requirements of paragraph (9).
(9) The agreement mentioned in paragraph (7)(e) must ensure that by the time the CIL cash amount would be payable if it was being paid in money, an amount equal to the CIL cash amount must either—
(a)have been used to provide the infrastructure; or
(b)be subject to an arrangement so that—
(i)it can only be used by P for the purposes of providing the infrastructure,
(ii)P cannot use that amount as a means of securing additional funding or in any other way that would benefit P,
(iii)any interest or other benefit received in relation to that amount from that date belong to the charging authority,
(iv)any funds subject to the arrangement remaining once the infrastructure has been provided belong to the charging authority, and
(v)if the CIL cash amount becomes payable in money, any funds subject to the arrangement are used for that purpose.
(10) Where the infrastructure is to be provided to a person other than the charging authority, the charging authority may not enter into the agreement mentioned in paragraph (7)(e) unless it is satisfied that that person will use the infrastructure to support the development of the charging authority’s area.
(11) For the purposes of this regulation, the value of the infrastructure provided must be determined by an independent person, and is the cost to P of providing that infrastructure (including related design costs) on the day the valuation takes place.
(12) In this regulation—
(a)“the CIL cash amount” means the CIL the infrastructure payment is accepted in satisfaction of;
(b)“independent person” has the same meaning as in regulation 73(14) (payment in kind);
(c)infrastructure is “provided to” a person if it is completed and ownership of it is transferred to that person;
[F2(d)“relevant infrastructure” has the same meaning as in regulation 123 (further limitations on the use of planning obligations); and]
[F2(d)“relevant infrastructure” means—
(i)the infrastructure projects or the types of infrastructure listed by a charging authority on its infrastructure list; and
(ii)in relation to any time before 31st December 2020, where no such list has been published, any infrastructure; and]
(e)”relevant permission” means the planning permission which grants permission for the chargeable development mentioned in paragraph (2).]
Textual Amendments
F1Regs. 73A, 73B inserted (24.2.2014) by The Community Infrastructure Levy (Amendment) Regulations 2014 (S.I. 2014/385), regs. 1, 9(6)
F2Reg. 73A(12)(d) substituted (E.) (1.9.2019) by The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 (S.I. 2019/1103), regs. 1, 9(5) (with reg. 13)