Archived decisions

HAMPSHIRE COUNTY COUNCIL

Decision Report

1. Executive Summary

1.1. The purpose of this paper is to set out a proposed County Council response to the Government's proposals for the implementation of Community Infrastructure Levy (CIL).

1.2. The 2008 Planning Act contained enabling clauses for a CIL in England and Wales. The Levy will be a charge on development which local planning authorities can choose to set and which is designed to help fund needed infrastructure. It will be paid primarily by owners or developers of land which is developed.

1.3. It will partially replace developer contributions secured under Section 106 of the Town and Country Planning Act 1990. The Government intends to limit the use of Section 106 agreements, particularly for off-site measures, possibly to the extent of specifically forbidding pooled contribution schemes such as the County Council's transport contributions scheme. It is likely that this prohibition will apply everywhere, even in areas that have chosen not to adopt the new levy.

1.4. The operation of the County Council's `transport' and `schools' contributions approach has delivered a significant funding income to support the delivery of essential infrastructure in Hampshire, for example it has raised typically £5-6 million annually in recent years for transport provision, which is significantly higher than the funding and borrowing approvals received through the Local Transport Plan (LTP), particularly for a `floor' authority such as Hampshire.

1.5. The Government has now published detailed proposals for the introduction of the levy, including draft regulations for public consultation until 23 October. The Government has granted an extension on this deadline in respect of the County Council, in order to enable the proposals to be considered by the Cabinet. The proposed response is attached as an appendix to this report.

1.6. The regulations and the responses will subsequently be debated in the House of Commons. It is the Government's intention to bring the final regulations into effect on 6 April 2010.

1.7. This paper seeks to:

(i) provide some background to the securing of developer contributions to infrastructure;

(ii) outline the proposals and the aspects where the Government has not yet proposed a policy;

(iii) advise of the likely implications for the County Council; and

(iv) recommend a response to the consultation proposals.

1.8. The published proposals do not present a full picture. Lack of proposals in some areas and statements issued by officials at the Department of Communities and Local Government indicate that there is some uncertainty about how the government intends to proceed. The Council will have to consider further the implications of the levy and in particular its role as a major landowner, as and when further details become available. Currently the intended payment strategy on implementation of a planning consent is likely to reduce the benefits of the traditional Section 106 payment triggers such that it results in a negative cash flow position for developers which could in turn impact on land values.

2. Background

2.1. The current system of planning obligations (Section 106 agreements) allows local authorities to seek measures and financial contributions to mitigate the impact of development. A contribution to the cost of a piece of infrastructure can be sought if it is necessary to make a development acceptable in planning terms and has a direct relationship to a particular development. There is considerable scope within these broad parameters to secure contributions for both on and off site works, and the County Council has successfully operated such a policy in relation to transport and to school provision.

2.2. These policies are adopted by Hampshire districts and are a material consideration when determining planning applications. The obligations can take the form of financial contributions, agreed works or payment in kind such as land.

2.3. In 2008 the Government published a paper setting out initial proposals for CIL. The Government contended that the current system of planning obligations had a number of failings, which included:

(i) lack of fairness/efficiency in collection - in 2003/04 they only applied to around 40% of major residential permissions (more than 10 dwellings); and 9.2% of minor residential permissions (fewer than 10 dwellings) in England and Wales;

(ii) varying local authority performance - 40% of major planning permissions are accompanied by a planning obligation in the South East, compared with only 7.5% in the Yorkshire and Humber region; and

(iii) costs and delays - planning obligations are negotiated agreements and can cause substantial delay and cost to developers and impose a significant resource burden on local planning authorities.

2.4. Members may recall that the County Council has consistently argued that reform of the present system, to move towards a tariff approach for off-site infrastructure, would bring greater transparency and certainty to the process, without the convoluted arrangements, and likely loss of resources inherent in the CIL and the Planning Gain Supplement (PGS) proposed in 2005 following Kate Barker's Review of Housing Supply.

2.5. The Government published a document in January 2008 setting out the background to the Levy and more detail on the provisions in the Planning Bill. As the Bill progressed through Parliament a second document was published in August 2008 setting out further details. The current consultation is the first opportunity the Council has had to comment on the Government's proposals.

3. The Proposals

3.1. There are four main features of the Levy:

(i) a Charging Schedule, prepared by the "Charging Authority", which identifies the infrastructure required to support development and sets the level of the charge;

(ii) a mandatory charge, calculated in accordance with the charging schedule and payable on the commencement of development;

(iii) scaling back of the existing system of planning obligations collected under section 106 of the Town and Country Planning Act 1990; and

(iv) a framework for pooling contributions to a greater extent than is possible under planning obligations.

3.2. The following paragraphs take each aspect in turn, along with a commentary on detailed points. A summary of the implications of the proposals for the County Council follows later in this report.

The Charging Schedule

3.3. The Government has linked the introduction of CIL to the increased emphasis on infrastructure planning set out in revised Planning Policy Statement 12: Local Spatial Planning. The principle behind CIL is delivery of a predictable way of seeking contributions towards the costs of local infrastructure. This is achieved by the charging authority preparing a charging schedule. The charging schedule must be based on an up-to-date development plan (either an adopted Local Development Framework (LDF) Core Strategy or a draft Strategy in the final stages). This will set out:

(i) the likely infrastructure requirements needed to support the levels of development in the development plan;

(ii) the funding available to deliver the required infrastructure and therefore any gaps; and

(iii) a levy on development to make up the total shortfall identified above, with reference to the overall impact on development coming forward due to viability.

3.4. The regulations make it clear that the levy should only be calculated with reference to infrastructure required to support new development - investment to remedy existing deficiencies should not be included. The document does not include a definition of infrastructure, but does exclude affordable housing from the levy. While this ensures the on-site provision of affordable housing, it does leave a key aspect of development finances to be negotiated each time, with the potential problems listed in paragraph 2.3 of this report.

3.5. CIL is to be charged on buildings, rather than land generally. The Government's proposed charging unit is a square metre of gross internal floorspace. It will be possible for the schedule to set differential rates of CIL, for instance by geographical area or by class of development, but only where it can be justified on grounds of development viability. Differentiation of charges according to the relative impact or need for infrastructure will not be permitted.

3.6. The Government specifically excludes upper-tier authorities from the definition of Charging Authorities (although the Mayor can charge an additional CIL for transport projects in London). The Government's justification for this is that "the infrastructure needs generated by minerals and waste development authorities in an area are best planned for alongside the infrastructure needs of other forms of development by the district authority in preparing its development plan" (paragraph 3.8).

3.7. Charging schedules must be prepared in accordance with draft regulations and be subject to an Examination, a type of Public Inquiry broadly similar to those for Development Plan documents. The County Council must be consulted on a draft schedule, and has a right to be heard at the subsequent Examination. A key aspect of the Examination will be the likely impact of charging the levy on development viability. Therefore the Charging Authority will need to demonstrate that the levy will not prevent the development set out in the LDF from coming forward. The examiner will be able to recommend to the charging authority that it can adopt the schedule, or charge a lower amount, but not a higher amount.

3.8. There are a number of issues to be considered. The Government proposes that it will be for the charging authority to decide whether to proceed with CIL. This is not appropriate in two-tier areas, as there should be a consistency of approach across the strategic authority area. Instead, it should be clear that the decision to introduce CIL can only be taken in areas where the district and strategic authority decide it is appropriate for their area. Such an approach would be consistent with the duty for Local Authorities to cooperate with regards to Local Area Agreements and Community Strategies introduced by the Local Government and Public Involvement in Health Act 2007.

3.9. Another key aspect is that there is severe doubt as to whether the CIL proposals will be able to raise sufficient funds, as setting the levy at a viable level produces a significant funding gap. A study just completed in Hertfordshire allegedly shows that CIL will not produce enough money to fund the infrastructure required.

A Mandatory Charge

3.10. CIL is to be charged on buildings, rather than on development generally. There will be a de minimis threshold of 100 square metres and householder development will be largely exempt. The draft regulations propose an exemption for charities and the Government is considering a reduction for affordable housing. In all other cases, the basic principle is that all development will pay CIL. It is not negotiable in the same way as planning obligations collected under Section 106, although the Government is considering how authorities will deal with situations where developers cannot afford the levy. This will, however, be applicable only in very limited, special circumstances.

3.11. The levy will be calculated at the time planning consent is given for any new building or change of use within the charging authority area. The levy will be due when development commences.

3.12. County Councils in two-tier areas are designated collection authorities for minerals and waste development and required to collect CIL from chargeable development for which they grant consent. Funds collected in this way are to be handed over to the relevant district (charging authority) quarterly.

3.13. One concern about a mandatory charge is that all development (including County Council and other essential public service developments such as schools, social care facilities) will be liable to pay the levy unless specifically exempted in the charging schedule. In addition, by focusing the charge on buildings, the levy will miss those developments which do not entail significant built floorspace but generate need for infrastructure (such as open storage sites).

Scaling back of Planning Obligations

3.14. As mentioned, affordable housing is not included in CIL and will continue under Section 106. In all other aspects, the introduction of CIL will be accompanied by a scaling back of planning obligations allowed under Section 106. The extent to which obligations are to be scaled back is not yet certain, but it seems likely that at the least the Government is considering whether to rule out the pooling of financial contributions under tariff-based Section 106 schemes.

3.15. In effect, this is likely to limit the application of Section 106 planning obligations to the provision of affordable housing and the provision of works such as highways improvements or landscaping, which make each individual development acceptable, without reference to their wider impact on services.

3.16. The Government has indicated that there would be a transitional period of two years from the commencement of CIL (proposed for April 2010) before these restrictions came into effect.

Pooling Contributions and Spending CIL

3.17. The regulations contain less detail on spending CIL. The Government considers that, unlike planning obligations which tend to capture value from larger sites, CIL has the advantage that it will capture contributions from a far wider range of development. It should therefore in their view provide a more dependable source of funding which could assist in securing investment up front via innovative funding arrangements such as Regional Infrastructure Funds.

3.18. The consultation document states that, taken with other Government proposals for devolved decision making and a local economic assessment duty, CIL could be part of a wider toolkit that empowers local authorities to deliver growth at the sub-regional level.

3.19. However, it is considered that CIL represents a missed opportunity, and is likely to get in the way of other initiatives likely to be delivered by upper-tier authorities. The use of Regional Infrastructure Funds has been limited to delivering individual large scale projects, not in dealing with general infrastructure needs. The Government's assertion that CIL will provide a more dependable income stream ignores the fact that it is dependent on development activity. The suggestion that it facilitates a more strategic approach to infrastructure funding is also questionable given the decision to make District Councils the charging authorities in two-tier areas.

Implications for the County Council

3.20. The Government has yet to set out proposals for many points of detail, for instance the treatment of affordable housing and charities, arrangements for exceptional circumstances where the levy cannot be paid, and the extent to which planning obligations will be scaled back.

3.21. Although the levy has been promoted as a voluntary measure, the Government is considering restricting the use of planning obligations whether an authority has introduced the levy or not. If such restrictions are put in place it seems likely that local authorities will have little choice but to implement CIL as the only mechanism available to gather contributions for infrastructure.

3.22. The introduction of CIL would have the following consequences:

(i) as an upper-tier authority the Council would not be able to charge CIL, but would instead rely on engaging with districts to firstly make the case for infrastructure provided by the Council (eg new schools and highways improvements) in the charging schedule and secondly to advocate the appropriate prioritising and allocation of CIL receipts. Both would entail a loss of control that the Council currently has through the section 106 planning obligations process and reduce the certainty of delivery;

(ii) as it stands, it appears CIL would be charged on County Council developments such as new school buildings. The Council should clearly oppose this in principle, but will have to consider its approach with regard to providing evidence to districts to support any differential rate for CIL on public facilities;

(iii) the restrictions in Section 106 planning obligations are likely to commence in April 2012. The complexities and uncertainties of the new planning system have resulted in delays to the production of Local Development Frameworks by Local Planning Authorities and in Hampshire at least two Districts do not expect to have their LDF Core Strategies adopted by this date. Although an adopted Core Strategy is not a prerequisite for the Levy, it demonstrates the vulnerability of the process to any delays in each authority's LDF. If authorities have not adopted a CIL charging schedule by that date there will be no means of collecting contributions;

(iv) as district authorities would be able to set their own charges in their schedules, there is the risk of a "postcode lottery" for developers across Hampshire;

(v) the County Council would be responsible for collecting CIL on minerals and waste developments for which it has granted permission before passing this on to the relevant district. This would have associated enforcement and reporting requirements;

(vi) the County Council operates or is involved with a number of planning obligations schemes which pool contributions from developers. It has been established County Council policy to extend this approach into other main areas of public service delivery such as Social Care. Some or all of these are likely to be restricted in the future, depending on the extent to which the Government prevents the use of tariff-style contributions:

a) the County Council's Transport Contributions Policy sets out a formulaic approach to calculating transport contributions across the county. Contributions are secured to mitigate against a development's impact or to encourage more sustainable transport practices. This scheme is likely to be prevented from further use if the Government restricts the pooling of contributions under Section 106 planning obligations;

b) the Council is a member of the Thames Basin Heaths Joint Strategic Partnership Board and supports the operation of an avoidance strategy which relies on planning obligations. Funds collected under these obligations facilitate development in these environmentally-sensitive areas by providing for suitable alternate green space. Such contribution schemes could also be prevented under restrictions currently being considered by the Government.

c) the position regarding the County Council's policy for collecting contributions towards Children's Services facilities is less clear cut, but has nevertheless operated successfully on a case by case basis for some time. Depending on the nature of any future restrictions to planning obligations, the policy may not be permitted.

3.23. A response to the consultation has been drafted based on the recommendations in this report. The Government's consultation document consists of 54 detailed questions on various aspects of the proposals, not all of which are applicable to Hampshire. It is therefore proposed to present the Council's main concerns in a letter to the Government, supported by a schedule setting out answers to the detailed consultation questions where appropriate.

4. Proposed County Council Response

4.1. Overall, it is recommended that the County Council should continue to oppose the introduction of CIL; the arrangements are impractical and damaging to the delivery of the strategic infrastructure needed to support new development. In addition `planning gain' has been an essential source of funding to enable timely provision of infrastructure to support growth in areas such as Hampshire in the past, and well established arrangements exist to support this through Section 106 agreements.

4.2. The Government has recognised in the Local Area Agreement (LAA) arrangements that partnership working is essential to modern public service delivery, and that a co-ordinated and harmonised approach is best delivered through co-operation between tiers, based on County or Unitary Council areas. In two tier areas, the bulk of public services are provided by the upper tier authorities, and they also lead on strategic public service investment initiatives such as Building Schools for the Future, or Local Transport Plans. It is therefore difficult to understand how the CIL proposal to exclude County Councils from being charging authorities will contribute to integrated and efficient public service delivery. In a two tier area like Hampshire there is therefore a disconnect between CIL and other strategic public service investment planning and delivery. With the variable timetables from LDF production and adoption, and the strong likelihood of variable policy provision between Districts, the arrangements are likely to reduce investment and frustrate strategic infrastructure planning and provision.

4.3. It seems clear that the key feature of the current proposals is the likely scaling back of planning obligations. Although CIL is promoted as being voluntary, it seems that planning obligations will be restricted to the extent that planning authorities have little choice but to implement CIL. It is therefore recommended that the County Council should also signal its opposition to this short sighted and ill thought out measure, which is likely to result in the loss of funding for strategic infrastructure, which will in turn prevent the development of sustainable communities, supported by adequate provision of public services and infrastructure.

4.4. If the Government persists with the introduction of CIL, the County Council should press strongly for a number of changes. It will also be important that the County Council engages effectively with local planning authorities to ensure that the strategic public service infrastructure required to support development is adequately considered in the charging schedules, and that the County Council vigorously pursues this interest through the LDF process in each District area.

5. Recommendations

5.1. That the County Council reiterate its objection to the proposed Community Infrastructure Levy as impractical, and likely to reduce funding for provision of key infrastructure.

5.2. That the County Council formally objects to the exclusion of County Councils from the definition of Charging Authorities, and calls instead for the system to recognise the leadership and co-ordination role of County and Unitary Authorities in strategic investment planning and delivery of critical public services.

5.3. That the County Council formally objects to any restriction of the scope of Section 106 obligations and contributions, and instead calls for the retention and extension of pooling arrangement for Section 106 contributions and obligations as an alternative to Community Infrastructure Levy, where this is the preferred option of upper and lower tier authorities in an area.

5.4. That the County Council calls for public service developments and provision of facilities to be exempt from Community Infrastructure Levy.

5.5. That the draft response to the consultation, comprising the covering letter and responses to the consultation questions set out in the attached appendix be approved and submitted to the Department for Communities and Local Government.

5.6. That the Directors of Environment and Property, Business and Regulatory Services, together with the County Treasurer, be authorised to engage with District Councils in a coordinated fashion on behalf of the County Council to secure the necessary funding provision for public service infrastructure within draft Local Development Frameworks.

2170Rpt/990/TA

CORPORATE OR LEGAL INFORMATION:

Links to the Corporate Strategy

IMPACT ASSESSMENTS:

1. Equalities Impact Assessment:

1.1. Equalities issues have been considered and no adverse impact identified.

2. Impact on Crime and Disorder:

2.1. These proposals will have no impact on crime and disorder.

3. Climate Change:

a) How does what is being proposed impact on our carbon footprint / energy consumption?

No specific impacts have been identified.

b) How does what is being proposed consider the need to adapt to climate change, and be resilient to its longer term impacts?

No specific measures have been identified.

Paul Martin

Communities and Local Government

CIL Team

Zone 1/E2

Eland House

Bressenden Place

London SW1E 5DU

Dear Mr Martin

Community Infrastructure Levy Consultation

I enclose Hampshire County Council's comments on the proposed detailed regulations for the introduction of the Community Infrastructure Levy. The County Council is grateful for the extension to the consultation deadline, which has enabled the response to be considered at the Cabinet meeting of 26 October

County Council re-iterates its objection to the proposed Community Infrastructure levy as impractical and likely to reduce funding for provision of strategic infrastructure. There are a number of major areas of concern.

The Government has recognised in the LAA arrangements that partnership working is essential to modern public service delivery, and that a co-ordinated and harmonised approach is best delivered through co-operation between tiers, based on County or Unitary Council areas. In two tier areas, the bulk of public services are provided by the upper tier authorities, and they also lead on strategic public service investment initiatives such as Building Schools for the Future, or Local Transport Plans.

It is therefore difficult to understand how the CIL proposal to exclude County Councils from being charging authorities will contribute to integrated and efficient public service delivery. Therefore, the County Council formally objects to the exclusion of County Councils from the definition of Charging Authorities, and calls instead for the system to recognise the leadership and co-ordination role of County and Unitary Authorities in strategic investment planning and delivery of critical public services.

Planning gain has been an essential source of funding to enable timely provision of infrastructure to support growth in areas such as Hampshire in the past, and well established arrangements exist to support this through Section 106 agreements.

The County Council objects to any restriction of the scope of s106 contributions, and instead calls for the retention and extension of pooling arrangement for s106 obligations as an alternative to CIL. Although CIL is promoted as being voluntary, it seems that planning obligations will be restricted to the extent that planning authorities may have little choice but to implement the levy.

The proposed restrictions in section 106 planning obligations are likely to commence in April 2012. If authorities have not adopted a CIL charging schedule by that date there will be no means of collecting contributions. Imposing a deadline for the introduction of CIL therefore risks delivery of infrastructure.

The scale back of planning obligations should be dependent upon whether the authority (or both tiers of local government in relevant areas) for that area have decided to adopt CIL, and has completed the adoption of its LDF to bring the policy into effect. The use of pooled contributions and planning tariffs should not be prevented in areas where CIL is not in place. This would ensure that local circumstances can determine the most effective arrangement for delivery of strategic infrastructure in each area. The potential scaling back of planning obligations in areas which have not yet adopted CIL raises concerns over the funding and deliverability of services at a time when this is a key issue for local authorities.

Related to this are concerns that as district authorities would be able to set their own charges in their schedules, there is the risk of a "postcode lottery" for developers across Hampshire, and the likelihood that more of the burden for provision of public services will fall on the Council tax payer rather than developers.

Finally, as a significant service provider, the County Council calls for school, care facilities and other public service buildings to be exempt from CIL. Imposing CIL on public buildings risks delivery at a time when public finances will be limited. Much of the Examination into each charging schedule in Hampshire would be taken up with considering these aspects, which may be better dealt with by a blanket exemption from CIL of public service developments.

Detailed responses to the consultation questions, which together with this letter, form the County Council's consultation response, follow.

Yours sincerely

Cllr K T Thornber CBE

Leader of Hampshire County Council.

Consultation Questions and Hampshire County Council's Response

Delivering infrastructure with CIL

1: Do you agree with the proposal that the draft CIL regulations do not define

`infrastructure' further?

Comments

Yes, it is important that local flexibility and discretion is maintained.

2: Is any further reporting required for CIL?

Comments

No.

Format of Reports

3: (a) Is the 1 October deadline for reporting on the previous year's activity sufficient for local planning authorities?

(b) Will this timescale enable developers and local communities to understand how CIL revenue has been applied?

Comments

Reporting CIL should be included in the Annual Monitoring Report for each authority. Requiring separate monitoring processes is inefficient and potentially confusing.

General

4: Do you have any comments on any other matters raised in chapter 2 which are not covered by the questions above?

No.

Charging Authorities

5: Are there any circumstances where a CIL charging authority would not be able to fulfil its charging authority functions effectively?

Comments

The County Council formally objects to the exclusion of County Councils from the definition of Charging Authorities, and calls instead for the system to recognise the leadership and co-ordination role of County and Unitary Authorities in strategic investment planning and delivery of critical public services.

6: (a) In deciding whether to use the power at section 207 of the Act, should the Government apply different criteria?

(b) Which functions should a joint committee perform?

Comments

No .

Differential Rates

7: Do you agree that differential rates should be based only upon the economic viability of development?

Comments:

No. School, care facilities and other public service buildings should be exempt from CIL. In addition, all infrastructure projects and service areas identified as necessary for the support of local communities in the charging schedule should be exempt from CIL. This would prevent the cost of providing infrastructure (such as education facilities) being inflated.

Metrics

8: Do you agree that CIL charges should be based on a metric of pounds per square metre?

Comments:

Only if sufficient safeguards are put in place to ensure that developments which do not entail significant built floorspace but generate need for infrastructure (such as open storage sites) also meet those infrastructure needs.

Chapter 6

9: Would prefer to have a choice of charging metrics, and if so, can you suggest what and how the system could accommodate this choice without undue complexity and unfair distortions?

Comments

Yes. It should be possible to supplement the metric of pounds per square metre of floorspace with a charge to cover developments which do not entail significant built floorspace but generate need for infrastructure (such as open storage sites).

10: Do you agree with the Government's proposal to apply the charging metric to the gross internal area of development or do you think there are advantages to levying CIL on the gross external area?

Comments

Yes. Gross external area is consistent with existing monitoring systems.

11: Do you agree that CIL should be levied on the gross development, rather than the net additional increase in development?

Comments

No. Charging the levy on the gross development will discourage the reuse of previously-developed land. It will also complicate the setting of the levy as most development requirements are calculated and expressed on a net basis.

Indexation

12: Should authorities be required to index CIL charges?

Comments

No - that flexibility should be left to individual authorities, but they should be required to consult annually with the strategic authority in two tier areas.

13: (a) Should indexation be based on a national index to provide simplicity, consistency and a readily understood index.

(b) Alternatively, should charging authorities be allowed to choose different indices in different places?

Comments

Flexibility should be left to individual authorities, but they should be required to consult annually with the strategic authority in two tier areas.

14: Do you agree with the Government's proposed choice of an index of construction costs?

Comments

Flexibility should be left to individual authorities, particularly as construction forms only part of new infrastructure costs.

15: Are you content with indexation taking place to the point of the grant of planning permission or would you prefer charges to be indexed to the point when development commences?

Comments

Indexing to the point of the grant of planning permission would be the most transparent basis for charging the levy.

16: Do you think it is right to apply the index on an annual basis or do you see advantages in applying it monthly?

Comments

In times of significant inflation applying the index on an annual basis will be detrimental to public services. Any indexing should be applied monthly.

17: Do you agree that charging authorities should be able to index their charges from 1 January each year (taking the November index)?

Comments

In times of significant inflation applying the index on an annual basis will be detrimental to public services. Any indexing should be applied monthly.

Charging Schedule Procedures

18: Do you agree with the Government's proposal to allow joint charging schedule/ development plan examinations?

Comments

Yes .

19: Do regulations or guidance need to cover any additional matters relating to joint examinations?

Comments

No.

20: Should the CIL examiner be able to modify a draft charging schedule to increase the proposed CIL rate?

Comments

Yes.

General

21: Do you have comments on any other matters raised in chapter 3 which are not covered by the questions above?

The Government has recognised in the LAA arrangements that partnership working is essential to modern public service delivery, and that a co-ordinated and harmonised approach is best delivered through co-operation between tiers, based on County or Unitary Council areas. In two tier areas, the bulk of public services are provided by the upper tier authorities, and they also lead on strategic public service investment initiatives such as Building Schools for the Future, or Local Transport Plans.

It is therefore difficult to understand how the CIL proposal to exclude County Councils from being charging authorities will contribute to integrated and efficient public service delivery. It should be clear that CIL should only be introduced where this is the preferred option of both upper and lower tier authorities in a two-tier area.

Chapter 4. Paying CIL

22: (a) Do you agree with the chosen definitions of building, planning permission and `first permits'?

(b) If not, what changes would you wish to see that strike the right balance between simplicity, fairness and minimising distortions?

Comments

Yes.

23: (a) Do you agree with our approach to when CIL is chargeable on outline and reserved planning permissions.

(b) If not, what changes would you wish to see that deal fairly with these types of permissions?

Comments

Yes.

Exemptions and Discounts

24: (a) What are your views on the principle of providing a reduced rate of CIL for affordable housing development?

(b) What do you think the likely consequences of providing such a discount might be?

Comments

A reduced rate of CIL should be charged for affordable housing development. This will assist in the delivery of affordable housing.

25: If the Government were to provide a reduced rate of CIL for affordable housing development, do you think that the proposed definition of affordable housing is workable in practice?

Comments

The definition of affordable housing should include all forms of social rented, keyworker and other intermediate schemes promoted by local authorities.

26: If the proposed definition provides a workable basis for any reduced rate of CIL for affordable housing, should CIL relief for charities building affordable housing be applied according to this definition or according to whether it fulfils the charity's charitable purposes?

Comments

The reduction for affordable housing should apply whether it is promoted by a charity or other body.

27: Should LCHO properties where receipts from staircasing are recycled for additional affordable housing, not be subject to any clawback?

(b) if LCHO properties where receipts are not recycled are subject to clawback of the CIL discount, should there be a time limit up till when staircasing to full ownership would invoke clawback?

(c) How should such a clawback operate?

Comments

Yes. Subjecting LCHO properties to clawback of relief from CIL will add unnecessarily to the complexity of the scheme.

28: Is 7 years an acceptable time period for clawback to operate over?

Comments

Subjecting LCHO properties to clawback of relief from CIL will add unnecessarily to the complexity of the scheme.

29: Is it reasonable to ask a claimant to submit an apportionment of liability in this way?

Comments

Subjecting LCHO properties to clawback of relief from CIL will add unnecessarily to the complexity of the scheme.

30: Do you agree that it is best not to have a special procedure for developments that have difficulty in paying the advertised rate of CIL? If not, how could it be done in a way that is fair, non-distortionary and not open to abuse?

Comments

No. There should be flexibility in the system to allow for schemes which cannot pay the advertised rate of CIL.

The Liable Party

31: Do you agree with the Government's proposals for liable parties and assumption of liability?

Comments

The proposals for liable parties should make it clear that school, care facilities and other public service buildings to be exempt from CIL. In addition, public landowners including local authorities should have a general exemption from CL on developments on their own landholdings.

Collecting CIL

32: Are these timescales for the transfer of CIL revenue from the collecting authority to the charging authority the right ones?

Comments

The timescales for the transfer of CIL revenue should be determined by agreement between the collecting authority and the charging authority.

Payment of CIL in kind

33: Do you think that the final regulations should provide for the payment of CIL in-kind?

Yes. Payments in kind have been a feature of planning obligations for many years and have been proved to be an effective mechanism for delivery. The delivery of free land for educational and other purposes has been a key part of successful planning for new infrastructure and this must be allowed to continue.

34: If you think they should, can you suggest how CIL could be paid in-kind without incurring the difficulties outlined above?

The difficulties of transparency, achieving value for money and other concerns in accepting payments-in-kind outlined in the consultation document would be avoided if the acceptance of payments in kind were limited to those schemes identified and costed in the charging schedule.

Payment by Instalments

35: (a) Should payment by instalments be provided for in the final CIL regulations in addition to the ability to pay CIL by phases of development?

(b) How should the instalments be structured?

36: Do you agree that payment on account should not be provided for in the final CIL regulations?

Comments

It should be for the charging authority to determine whether to allow payment by instalments or payment on account.

Duty on the Authority to Remove the Local Land Charge Upon Request

37: Should the collecting authority be under a duty to remove the charge automatically on payment of the full CIL liability?

Comments

It should be for the collecting authority to determine whether to remove the land charge on payment of the CIL liability.

Enforcement of CIL Liabilities

38: Should the draft regulations be amended to require collecting authorities to have to issue a warning to liable parties (in writing and possibly by posting a warning on the site in question) before being able to impose a late payment surcharge?

Comments

Enforcement of liabilities should be a matter determined by the collecting authority.

39: Are the means of recovering CIL debts sufficient or would further methods, such as the ability to impose attachment of earnings orders, be helpful?

Comments

Enforcement of liabilities should be a matter determined by the collecting authority.

40: Should the Government provide for specific enforcement measures in regulations to allow collecting authorities to penalise and deter breaches of the conditions for relief?

Comments

Enforcement of liabilities should be a matter determined by the collecting authority.

Compensation

41: Is a bespoke compensation regime required for CIL where enforcement action is inappropriately taken or would the Ombudsman route suffice?

Comments

The Ombudsman route is considered sufficient. A bespoke compensation regime would duplicate existing procedures.

General

42: Do you have any comments on any other matters raised in chapter 4 which are not covered by the questions above?

Comments

None.

Chapter 5. Planning obligations and other powers

43: What do you think about the Government's proposal as set out in draft regulation 94 to scale back the use of planning obligations?

The Council is opposed in principle to the scaling back of existing planning obligations. This can only be acceptable in areas where CIL has been introduced, with the agreement of upper and lower tier authorities to cover the whole area.

44: Do you think the wording of the five tests as set out in draft regulation 94 is appropriate? Is each of the five tests meaningful and workable in practice, or could any be expressed in a better way?

Comments

The wording of the five tests is considered inappropriate as it is intended to curtail the use of planning obligations, the successful use of which has evolved over time.

45: Do you think that a transitional period, beyond the commencement of CIL regulations in April 2010, would be required to restrict use of planning obligations to the Circular 5/05 tests. And if so what should it be and why is such a period required?

Comment

Any scaling back of planning obligations should only occur in line with the comprehensive adoption of LDFs and introduction of CIL, where that is the preferred option of upper and lower tier authorities in an area. Setting a deadline via a transitional period restricts the ability of local authorities to determine the correct approach for their area.

Should the Government impose a transitional period it is not certain that authorities will be able to introduce CIL before planning obligations are restricted. This represents a significant risk to delivery of infrastructure.

46: Do you agree that a scale back of planning obligations as set out in draft regulation 94 should apply universally across England and Wales regardless of whether a local authority has a CIL or not?

Comments

No. The Council objects to any restriction of the scope of s106 contributions, and instead calls for the retention and extension of pooling arrangement for s106 obligations as an alternative to CIL, where this is the preferred option of upper and lower tier authorities in an area.

47: Should a scale back of the use of planning obligations go further and prevent the future use of planning obligations for pooled contributions and tariffs?

Comments

No.

48: Do you think the Government's proposal to provide an additional legal criterion to restrict the use of planning obligations to address planning impacts `solely' caused by a CIL chargeable development is workable in practice?

If not, please state why not. Can you think of an alternative which would have the same or similar effect?

Comments

No. The Council objects to any restriction of the scope of s106 contributions, and instead calls for the retention and extension of pooling arrangement for s106 obligations as an alternative to CIL, where this is the preferred option of upper and lower tier authorities in an area.

49: What transitional period, beyond the commencement of CIL regulations in April 2010, would be required to restrict use of planning obligations to mitigate impacts `solely' caused by CIL chargeable developments?

Comment

Any scaling back of planning obligations should only occur in line with the comprehensive adoption of LDFs and introduction of CIL, where that is the preferred option of upper and lower tier authorities in an area. Setting a deadline via a transitional period restricts the ability of local authorities to determine the correct approach for their area.

Should the Government impose a transitional period it is not certain that authorities will be able to introduce CIL before planning obligations are restricted.

50: Do you agree that a restriction of planning obligations to prevent their use for pooled contributions or tariffs should apply universally across England and Wales regardless of whether a local authority has a CIL or not?

Comments

No. The Council objects to any restriction of the scope of s106 contributions, and instead calls for the retention and extension of pooling arrangement for s106 obligations as an alternative to CIL, where this is the preferred option of upper and lower tier authorities in an area.

51: What transitional period in London do you think would be required before a scale back of the use of planning obligations which prevented the use of pooled contributions and tariffs could take effect, to ensure a smooth transition from the existing to the new planning obligations regime, taking account for the need to use planning obligations for Crossrail purposes?

Comments

No response.

52: In revising Circular 5/05 in light of the introduction of CIL what further policy or areas of clarification do you think might be required with regards to the use of planning obligations?

Comments

Any scaling back of planning obligations should only occur in line with the comprehensive adoption of LDFs and introduction of CIL, where that is the preferred option of upper and lower tier authorities in an area. The use of pooled contributions and planning tariffs should not be prevented in areas where CIL is not in place.

53: Do you think any additional further guidance (additional to a revised Circular 5/05) is required to support the use of planning obligations or CIL, and if so who would be best to provide it?

Comments

No.

General

54: Do you have comments on any other matters raised in chapter 5 which are not covered by the questions above?

Comments

No.