Community Infrastructure Levy

by Sima Odedra, Principal Planning Solicitor

The Community Infrastructure Levy (CIL) is a planning charge that has been in force since 2010 via The Community Infrastructure Levy Regulations 2010 (“2010 Regulations”). It has recently been subject to a government consultation and the outcome of this consultation has resulted in the Community Infrastructure Levy (Amendment) (England) (No.2) Regulations 2019 (“2019 Regulations”) being laid before parliament on 4 June 2019. Subject to approval by parliament the 2019 Regulations will come into force on 1 September 2019.

At this stage the following amendments to the 2010 Regulations may be of particular interest to local planning authorities. This is not an exhaustive list as a number of other changes have also been made:

  • Being able to calculate CIL where a section 73 permission leads to an increase or decrease in CIL liability – Regulation 5.
  • Imposing a surcharge on developers if they fail to provide a commencement notice instead of CIL reliefs being lost – Regulation 6.
  • Inserting Regulation 121A and Schedule 2 which will require local authorities to publish an annual infrastructure funding statement setting out how much CIL is collected, how much is spent and what it is spent on for CIL charging authorities and similar provision in relation to planning obligations pursuant to section 106 of the Town and Country Planning Act 1990 – Regulation 9.
  • Inserting Regulation 121B requiring parish councils to report the amount of CIL receipts it has received – Regulation 9.
  • Amending Regulation 122 to allow provision for monitoring fees in section 106 agreements – Regulation 10.
  • Removing Regulation 123 which currently restricts the number of planning obligations which a local authority can enter into in relation to the funding of relevant infrastructure – Regulation 11.

Departure from statutory consultee responses

The Secretary of State has recently dismissed an appeal against a refusal of planning permission for a site at Land at Ware Park, Wadesmill Road, Hertford, Hertfordshire (APP/M1900/W/17/3178839) on the basis that the proposed development would result in an unacceptable risk to a public drinking water supply, amongst other reasons.

The appeal was made against the decision of Hertfordshire County Council pursuant to an application to extract sand and gravel from the proposed development site over a period of 10 years, with phased restoration and aftercare for five years. As well as Hertfordshire County Council a local resident’s action group also opposed the appeal on the ground that although the appellant acknowledged that without adequate mitigation the proposed development posed an unacceptable risk of pollution to an important watercourse, the appellant failed to show adequate mitigation measures would be provided. Both the residents action group and the council were not satisfied that the mitigation measures proposed by the appellant would not cause a risk that could be avoided if the appeal was dismissed.

The appellant heavily relied on the response of the Environment Agency, a statutory consultee to the application, who raised no objections to the application and the case of Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin) where it was held that cogent and compelling reasons would be required if the decision maker sought to depart from the views of a statutory consultee. In response it was argued that there were cogent and compelling reasons to depart from the Environment Agency’s response on the basis that the Environment Agency did not have the expertise to carry out necessary enquiries into the mitigation measures proposed, and witness evidence heard at the Inquiry provided reasons to move away from the Environment Agency’s response.

The Inspector dismissed the appeal on the basis that, amongst other reasons, there was no convincing reason to support the assumptions made by the appellant for the schemes mitigation proposals. In the Inspectors view the assumptions made by the appellant could not reasonably be relied on given the doubt raised on the methodology for the mitigation proposals. Further uncertainty was cast on the proposals given that the Environment Agency could not provide any assistance with the appellants assumptions nor the way in which they were reached either. As such, the current scheme as it was would pose an unacceptable risk to an important public water supply.

Impact on decision making authorities

This decision highlights the importance in carefully analysing the responses of statutory consultees alongside proposals made by the applicants. Even where statutory consultees have raised no objections to an application, decision makers can depart from their views provided there are cogent and compelling reasons to do so.