[F1PART 4E+WPre-CIL permissions ‘amended’ when CIL is in effect
Textual Amendments
F1Sch. 1 inserted (E.) (1.9.2019) by The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 (S.I. 2019/1103), reg. 1, Sch. 1 (with regs. 1(3), 13)
Amount of CIL payable: pre-CIL permissions ‘amended’ when CIL is in effectE+W
7.—(1) Where all the criteria set out in sub-paragraph (2) are satisfied by a chargeable development which is granted planning permission (B) under section 73 of TCPA 1990, this paragraph applies for determining the amount of CIL payable in respect of the development.
(2) The criteria are—
(a)a pre-CIL permission is granted in relation to the development;
(b)B is later granted in relation to the development and B is an in-CIL permission; and
(c)B changes a condition subject to which a previous planning permission (P) in relation to the development was granted.
(3) Where P is a pre-CIL permission, the amount of CIL payable in respect of the development granted by B shall be the chargeable amount for the development minus the relief amount where—
(a)the chargeable amount for the development is—
(b)the relief amount is—
and—
X = the chargeable amount for the development for which B was granted, calculated in accordance with paragraph 1;
Rx = the amount of any applicable relief in relation to the development for which B was granted under Part 6 of these Regulations;
Y = the amount that would have been the chargeable amount for the development for which P was granted, calculated in accordance with paragraph 1 (as modified by sub-paragraph (4));
NRy = the amount of any notional relief in relation to the development for which P was granted, determined in accordance with sub-paragraph (5).
(4) For the purposes of calculating Y, paragraph 1 applies as if—
(a)P first permitted development on the same day as B;
(b)IP for P were the index figure for the calendar year in which B was granted;
(c)a reference to a relevant charging schedule were a reference to the charging schedule of the charging authority which was in effect—
(i)at the time B first permits development; and
(ii)in the area in which the development will be situated.
(5) Notional relief is the amount of any one or more types of relief from liability to pay CIL which the charging authority determines, having regard to—
(a)all the circumstances of the development for which P was granted;
(b)the requirements of Part 6 of these Regulations (as modified by sub-paragraph (6)),
should be applied in relation to the development for which P was granted.
(6) For the purpose of determining any notional relief—
(a)the requirements of Part 6 of these Regulations apply as if—
(i)in relation to social housing relief, regulation 50 and paragraph 6 apply with the modifications set out paragraphs (a) to (c) of sub-paragraph (4);
(ii)the withdrawal provisions did not apply;
(b)except for social housing relief, a charging authority may not apply a notional relief for P where the type of relief the authority is considering applying is not applied in relation to B.
(7) Where P is an in-CIL permission, the amount of CIL payable in respect of the chargeable development granted by B shall be calculated in accordance with sub-paragraphs (3) to (6) as if any reference to P in those provisions were a reference to the most recently granted pre-CIL permission (ignoring any planning permissions where none of the conditions of that permission are of a type changed by B).
(8) If the amount calculated under sub-paragraph (3) is negative then the amount of CIL payable is deemed to be zero.
(9) Subject to sub-paragraph (12), where after B was granted a new planning permission is granted in relation to the development under section 73 of TCPA 1990, this paragraph applies as if any reference to B were a reference to the new planning permission.
(10) Where P is a pre-CIL permission, which is an outline planning permission, and the amount of CIL payable in respect of B is calculated under this paragraph before P first permits development then—
(a)if the charging authority is satisfied it has sufficient information to calculate Y, that figure is the amount so calculated;
(b)if the charging authority is satisfied it does not have sufficient information to calculate Y, the amount of CIL payable in respect of B is deemed to be zero.
(11) Sub-paragraph (10)(b) applies only once in relation to a development.
(12) Where sub-paragraph (10) applies in relation to B and after B was granted—
(a)a new planning permission (C) is granted in relation to the development under section 73 of TCPA 1990; and
(b)C changes a condition subject to which the P referred to in sub-paragraph (10) was granted,
then when calculating the chargeable amount in relation to C, sub-paragraphs (3) to (6) apply as if any reference to B were a reference to that P.
(13) In this paragraph—
“applicable relief” means any relief (including any relief carried over under regulation 58ZA) which, at the time any calculation under this paragraph is carried out, has been granted in relation to the development by the collecting authority in accordance with Part 6 of these Regulations (as modified by this paragraph) and not withdrawn;
“in-CIL permission” means a planning permission granted in relation to a development where on the date the permission is granted the development is situated in an area for which the charging authority has a charging schedule in effect;
“pre-CIL permission” means a planning permission granted in relation to a development where on the date the permission is granted the development is situated in an area for which the charging authority has no charging schedule in effect;
“withdrawal provisions” means—
regulation 42C (withdrawal of the exemption for residential annexes);
regulation 48 (withdrawal of charitable relief);
regulation 53 (withdrawal of social housing relief);
regulation 54D (withdrawal of the exemption for self-build housing); and
regulation 67(5) (acknowledgment to specify date clawback period ends).
(14) Part 11 of these Regulations (planning obligations) shall not apply in relation to the development referred to in sub-paragraph (1).
Transitional cases: pre-CIL phased permissions ‘amended’ when CIL is in effectE+W
8.—(1) Where all the criteria set out in sub-paragraph (2) are satisfied by a chargeable development which is granted planning permission (B) under section 73 of TCPA 1990, paragraph 7 applies for determining the chargeable amount with the modifications set out in sub-paragraph (3).
(2) The criteria are—
(a)a pre-CIL phased permission is granted in relation to the development;
(b)B is later granted in relation to the development and B is an in-CIL phased permission; and
(c)B changes a condition subject to which a previous phased planning permission (PP) in relation to the development was granted.
(3) The modifications referred to in sub-paragraph (1) are that paragraph 7 applies as if—
(a)any reference to the development were a reference to the phase of the development;
(b)any reference to P were a reference to PP; and
(c)after sub-paragraph (8) there were inserted—
“(8A) If the amount calculated under sub-paragraph (3) is negative, a phase credit is created from that phase (“the donating phase”) equal to the difference.
(8B) Where—
(a)development under B, in relation to the donating phase, has commenced, and
(b)a developer has applied to the collecting authority on a form published by the Secretary of State (or a form to substantially the same effect),
all or part of a phase credit is applied to reduce the amount of CIL due (and not already paid) in respect of another phase (“the receiving phase”).
(8C) Subject to sub-paragraph (8D), a phase credit (or the part of a phase credit) which has been applied in one receiving phase may not be used in any other phase.
(8D) Where after a phase credit has been applied to a receiving phase an amended phased planning permission is granted and the effect of that permission (before the application of the phase credit to the amended receiving phase) is such that there is no amount of CIL payable, then the phase credit may, at the discretion of the developer (and provided the developer makes a new valid application under sub-paragraph (8B)), be applied in relation to another receiving phase.
(8E) In sub-paragraphs (8A) to (8D)—
“amended phased planning permission” means a phased planning permission granted under section 73 of TCPA 1990 in relation to the development which is or forms part of a receiving phase;
“developer” means a person who—
has assumed liability to pay CIL in respect of both the donating phase and the receiving phase; or
has assumed liability to pay CIL in respect of only the receiving phase and has the written agreement, for the phase credit to be applied to the receiving phase, from the person who has assumed liability to pay CIL in respect of the donating phase.”.]