Updates to CIL Planning Practice Guidance

Planning Practice Guidance (PPG) for the Community Infrastructure Levy (CIL) was updated on 16th November 2020 in order to reflect earlier revisions of the Levy and the latest regulatory changes.

In the first instance, the guidance was updated to account for alterations to the Use Class Order which saw the introduction of the comprehensive Class E (Commercial, Business and Service) in September, whereby a range of high street uses were amalgamated. Paragraph 23 has been amended alongside the insertion of Paragraph 201 into the PPG, entitled ‘How do changes to the Use Classes Order affect charging schedules that set differential rates according to use classes that no longer exist’? The guidance sets out that references to the previous Use Class Order should be interpreted as the corresponding use class within Class E; thus, the individual CIL rates set before the amendments to the Use Classes Order will continue to apply.

The updated guidance also reflects the new First Homes initiative: Paragraph 202 has been inserted (along with alterations to Paragraphs 69, 70 and 73) to outline the introduction of the Community Infrastructure Levy (Amendment) (England) (No 2) Regulations 2020 (SI 2020/1226) which exempt First Homes from CIL. This amendment follows on from draft regulations that were laid in Parliament on 28th September. The change now allows First Homes to qualify for the mandatory Social Housing Relief (which also incorporates Shared Ownership, Social Rented and Affordable Rented Housing). First Homes is the Government’s flagship home ownership policy in which homes are sold to first time buyers at a discount of at least 30% from market value; the regulations stipulate that First Homes must be sold at no more than 70% of its market value and a planning obligation must be established in order to make certain that the discount remains attached to the property in question and is forwarded on to all future purchasers. This category also includes homes sold to key workers, but is dependent on a specified criteria. The Government hope that this exemption will aid in the increased delivery of much needed housing nationwide.

The third update to CIL PPG relates to the Introductory Guidance section which has been modified to delineate transitional arrangements following the implementation of the Community Infrastructure Levy (Amendment) (England) (No 2) Regulations 2019 (SI 2019/1103), which came into force on 01 September 2019. Regulation 5 (and Schedule 1) altered the regulations concerning chargeable development, the chargeable amount and the calculation of social housing relief. It is now clear that the aforementioned changes will only be applicable to permissions granted on or after the 01 September 2019. Further, in relation to Regulation 6, concerning adjustments to applications for relief or exemptions, the guidance states:

“If you have been granted a relief or exemption from the levy but fail to serve a Commencement Notice before beginning works on site, the 2019 Amendment Regulations (No. 2) apply a surcharge penalty, rather than the loss of the exemption. These changes only apply to cases where a Liability Notice or revised Liability Notice is issued on or after 1 September 2019”.

The guidance further emphasises that the issue date of the Liability Notice, or revised Liability Notice, is the key as to whether the 2019 regulations apply or not and subsequently whether loss of the exemption may occur.

The updated PPG on CIL is available at: https://www.gov.uk/guidance/community-infrastructure-levy
The Explanatory Memorandum concerning First Homes is available at: https://www.legislation.gov.uk/uksi/2020/1226/pdfs/uksiem_20201226_en.pdf

Additional changes to CIL of late:

Amendments on 25th September 2020 saw the insertion of Paragraph 107 into the Neighbourhood Planning PPG in response to the ongoing implications of the pandemic; in light of the fact that Covid restrictions have impacted on neighbourhood plan referendums and subsequent neighbourhood CIL received, updates now allows for parish councils or neighbourhood forums to negotiate reimbursements where appropriate.

The updated Neighbourhood PPG is available at: https://www.gov.uk/guidance/neighbourhood-planning–2#history

Also of note, Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020, which came into force on 22 July 2020, provide much needed discretionary manoeuvring for collecting authorities which allow planning authorities to deter a CIL payment for up to a maximum of 6 months whilst not enforcing late payment interest and surcharge payments. Nevertheless, caveats are in place and evidence must be provided.