The Community Infrastructure Levy came into force on 6 April. However, liability to pay CIL for a development will not arise until the LA has implemented a charging schedule (which has to be based on an up-to-date development plan, and then have been consulted upon, before it can come into effect).

The CIL will be set by individual LAs at a rate per square metre, and will be levied on the net additional floor space resulting from the development. Differential rates can be set across parts of a borough, and for different property uses. Points to note:

CIL will not affect an existing detailed planning permission (since it will have been granted before there was a charging schedule in place). Likewise, an existing outline permission will also escape CIL (even if the reserved matters approvals are granted after a charging schedule comes into effect);

an ‘application to vary conditions’ (s73 TCPA 1990) is not an amendment to the existing planning permission but is a new permission in its own right. So, if a charging schedule is in force when the s73 permission is granted then it will be subject to CIL (irrespective of whether the original permission was caught by CIL or not);

Section 106 agreements will still be used for impacts not covered by CIL, including (at least for the foreseeable future) the delivery of affordable housing. Some LAs will choose not to implement CIL and they will still be able to use s106 agreements as they do now. However, whenever an s106 agreement is now used, what used to be merely a policy test in Circular 05/2005 (ie that it be necessary, directly related to the development, and fairly and reasonably related in scale and kind) will become a mandatory legal requirement.

Source: Berwin Leighton Paisner.