14th November 2012

1. CIL Legal Update
RTPI West Midlands
Wednesday 14th November 2012
Oliver Martin, Partner, Irwin Mitchell LLP

2. CIL Legal Update
1. Draft Regulations to amend CIL (Community Infrastructure Levy
(Amendment) Regulations 2012)
2. Differential rates within same use – Borough of Poole’s CIL
examination
3. Further amendments or reform?

3. Background to the proposed changes to the CIL Regulations
• CIL Regulations 2010
• CIL Amendment Regulations 2011
• CIL – Detailed Proposals and draft regulations for reform –
Consultation (October 2011)
• Localism Act 2011 (s.114 and s.115)

4. Expectations relating to amendments to CIL Regulations
• Meaningful proportion of CIL to neighbourhoods
• Affordable Housing
• Section 73 applications

5. Community Infrastructure Levy (Amendment) Regulations 2012
• Bringing development granted consent under neighbourhood
development orders within CIL charge (amendment to reg. 5)
• Making replacement planning permissions granted under article 18
of TCP (Development Management Procedure) Order 2010 exempt
from CIL charge (new reg. 128B inserted)
• Amending the calculation of CIL to correct an error which meant
that some development could have been overcharged (amendment
to reg. 40)

6. Community Infrastructure Levy (Amendment) Regulations 2012
• Amending calculation of social housing relief to correct an error
(amendment to reg. 50)
• Amendment to make provision for instalment periods where Mayor
of London charges CIL in an area where London borough council
does not (amendment to reg. 70)
• Allowing CIL to be used on the maintenance and operational
aspects of infrastructure – reflects s.115 of Localism Act 2010
(amendment to reg. 59)

7. Community Infrastructure Levy (Amendment) Regulations 2012
“Section 73” Changes
• Section 73 permissions granted before Amendment Regulations
come into force still liable for CIL
• Once Amendment Regulations are in force Section 73 permissions
will still be liable but CIL liability:
- likely to be £0; or
- restricted to amount due on uplift in the consented development
• Still problem for new permissions forming part of wider
developments

8. Differential Rates with same use – eg Retail
• Poole Draft Charging Schedule proposed a levy of £200 per sq.m.
for retail stores over 3000 sq.m.
• Examiner’s view that there was “insufficient fine grained evidence”
to support the proposed differential rates
• Nothing in the CIL Regulations to prevent differential rates for retail
development of different scales

9. Future Amendments to CIL Regulations?
• HBF, BPF and London First seeking reform
• Government still looking at proportions of CIL for neighbourhoods

10. CIL Issues
• Level of CIL combined with LPA requirements for s.106 – impact on
development delivery due to viability issues
• Lack of certainty in relation to the Regulation 123 list
• Off-setting provisions relating to existing floor space – too limited in
practical terms of bringing development forward