RE: Impact of S73 on CIL - Desperate - Public forum - Planning Advisory Service (PAS)
RE: Impact of S73 on CIL - Desperate
Hello experts,
Could you kindly help me with my below query as I am really struggling to understand correct CIL regulation.
Fact - This is not a self build and does not qualify for self build exemptions. Planning permission A - 'New residential dwelling following demolition of B2 commercial unit' approved after CIL came into full effect in charging authority.
Scenario 1
Planning permission A has no CIL liability as demolition area exceeds new build area and B2 unit passed lawful test (in use for 6 months in 3 years from date of planning permission A)
Before A is commenced, if a S73 permission to A is approved for a minor change like moving the porch or including a bay window, and if this S73 is to be commenced/implemented rather than A - what is the CIL impact? Please note that by the time S73 permission comes through, the B2 unit has failed lawful test. In this scenario, will CIL be calculated across entire floor area or just for the bay window for example?
There is no breach of original planning permission at all as A has not even commenced and therefore B2 unit still stands at the time of S73 permission.
Scenario 2
Planning permission A has no CIL liability as demolition area exceeds new build area and B2 unit passed lawful test (in use for 6 months in 3 years from date of planning permission A)
After A is lawfully commenced, for some reason A is paused and S73 permission to A is pursued for a minor change like moving the porch or including a bay window. If this S73 is to be commenced/implemented rather than A - what is the CIL impact? Please note that by the time S73 permission comes through, the B2 unit has failed lawful test. In this scenario, will the CIL be calculated across entire floor area or just for the bay window for example?
There is no breach of original planning permission at all as A has lawfully commenced. B2 unit has been demolished for A to commence and hence will not be standing by the time S73 permission comes through.
Thanks,
Tino
Carol Gore, modified 7 Years ago.
RE: Impact of S73 on CIL - Desperate
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Tino,
From my humble opinion, i interpret the Regs as follows:
Scenario 1
Planning permission A has no CIL liability as demolition area exceeds new build area and B2 unit passed lawful test (in use for 6 months in 3 years from date of planning permission A)
Before A is commenced, if a S73 permission to A is approved for a minor change like moving the porch or including a bay window, and if this S73 is to be commenced/implemented rather than A - what is the CIL impact? Please note that by the time S73 permission comes through, the B2 unit has failed lawful test. In this scenario, will CIL be calculated across entire floor area or just for the bay window for example?
There is no breach of original planning permission at all as A has not even commenced and therefore B2 unit still stands at the time of S73 permission.
If there is no uplift in floorspace, then the CIL Liability Notice served on the original planning permission stands. If there is an uplift in floorspace under the S73, then the CIL Liability is calculated as if the date on which the S73 was granted, was actually the date the original planning permission was granted. Ergo, the floorspace can still be deduted - Reg.9(6)(7)&(8).
Scenario 2
Planning permission A has no CIL liability as demolition area exceeds new build area and B2 unit passed lawful test (in use for 6 months in 3 years from date of planning permission A)
After A is lawfully commenced, for some reason A is paused and S73 permission to A is pursued for a minor change like moving the porch or including a bay window. If this S73 is to be commenced/implemented rather than A - what is the CIL impact? Please note that by the time S73 permission comes through, the B2 unit has failed lawful test. In this scenario, will the CIL be calculated across entire floor area or just for the bay window for example?
There is no breach of original planning permission at all as A has lawfully commenced. B2 unit has been demolished for A to commence and hence will not be standing by the time S73 permission comes through.
Again, If there is no uplift in floorspace, then the CIL Liability remains with the original permission.
And, again, if there is an uplift in floorspace, and the S73 is approved AFTER the original permission has commenced (including demolition of a relevant building), then the CIL is still calculated as though the relevant building to be demolished exists, because the CIL Liability is calculated under Reg.40 as if the date on which the S73 was granted, was actually the date the original planning permission was granted. Ergo, the floorspace can still be deduted - Reg.9(6)(7)&(8).
So, those are my reasonings - I am sure others may interpret the Regs differently - they wouldn't be regulations if they weren't subjective!!!! :-)
Hi Carol,
Many thanks for your input - it does sound encouraging. Is Reg.9(6)(7)&(8) a watertight argument in this scenario? Would you have any examples where this has been used successfully? I would have thought that this is a common scenario in post-CIL era, but the impact of S73 on £0 CIL liable schemes seems to be largely unknown.
I am not sure if this is the appropriate forum - my LA (Wokingham BC) does not seem to be aware of Reg.9(6)(7)&(8). I am just wondering what is the best way to put this argument forward.
Thanks,
Tino
Simon Anstey, modified 7 Years ago.
RE: Impact of S73 on CIL - Desperate
Enthusiast Posts: 74 Join Date: 17/07/15 Recent PostsHi Simon,
Thank you. The lawful use was proven for original planning consent and CIL liability notice was issued for £0. There is no question of a new planning application at all. What is being requested under S73 is minor which would not even involve floorspace uplift, but the argument put forward by LA is that CIL will have to be re-calculated across entire floorspace which is very sizeable.
Thanks,
Tino
Carol Gore, modified 7 Years ago.
RE: Impact of S73 on CIL - Desperate
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Tino,
If there is no uplift in floorspace under the S73, then there is no CIL Liability to be issued. The Liability Notice issued on the original permission stays as the relevant Liability Notice (Reg.9(6)).
The regulations are water tight in the case of the fact that they are the regulations. I think reading through your comments, there is confusion between the application of Regulation 9; 'Meaning of Chargeable Development', and Regulation 128A "Transitional Provision: section 73 of the TCPA 1990 applications". Regulation 128A only relates to S73 applications during the transitional phase of CIL implementation. Regulation 9 specifically deals with S73 applications in general.
For ease of reference, the specific Regulation I quoted earlier is as follows:
9.—(1) The chargeable development is the development for which planning permission is granted.
(2) Paragraph (1) is subject to the following provisions of this regulation.
(3) Where planning permission is granted by way of a general consent, the chargeable development is the development identified in a notice of chargeable development submitted to the collecting authority in accordance with regulation 64.
(4) In the case of a grant of outline planning permission which permits development to be implemented in phases, each phase of the development is a separate chargeable development.
5) In Wales, where the effect of a planning permission granted under section 73 of TCPA 1990(1) is only to change a condition subject to which a previous planning permission was granted by extending the time within which development must be commenced, the chargeable development is the development for which permission was granted by the previous permission as if that development was commenced.
(6) Where the effect of a planning permission granted under section 73 of TCPA 1990 is to change a condition subject to which a previous planning permission was granted so that the amount of CIL payable calculated under regulation 40 (as modified by paragraph (8)) would not change, the chargeable development is the development for which planning permission was granted by the previous permission as if that development was commenced.
(7) Where the effect of the planning permission granted under section 73 of TCPA 1990 is to change a condition subject to which a previous planning permission was granted so that the amount of CIL payable under regulation 40 (as modified by paragraph (8)) would change, the chargeable development is the most recently commenced or re-commenced chargeable development.
(8) For the purposes of paragraphs (6) and (7), the liability to CIL under regulation 40 should be calculated in relation to an application made under section 73 of TCPA 1990 as if the date on which the planning permission granted under that application first permits development was the same as that for the application for planning permission to which the application under section 73 of TCPA 1990 relates.
(9) For the purposes of paragraph (7), chargeable development is re-commenced where—
(a) the chargeable development (“the earlier development”) was commenced;
(b) work on the earlier development was halted and a different chargeable development (“the later development”) that was granted planning permission under section 73 of TCPA 1990 was commenced on the relevant land; and
(c) the later development was subsequently halted and the earlier development is continued.”
Hi Carol,
Thank you for detailing Reg 9. I understand Reg 128A is seperate and speaks exclusively of transitional arrangements, ie where the original consent happened pre-CIL and S73 consent comes through post-CIL. I think Reg 9 is the correct one in this scenario as the original consent came post-CIL.
With regards to Reg 9 (6) (7) (8) as below, although you are saying that (6) should come into play if there is no uplift in floor space, is there any regulation to prove that it is not actually (7)? ie what defines whether something would or would not change the CIL payable amount? I am foreseeing a counter argument that the scenario is (7) and not (6). Even if that is the case, I am covered by (8) I would think.
(6) Where the effect of a planning permission granted under section 73 of TCPA 1990 is to change a condition subject to which a previous planning permission was granted so that the amount of CIL payable calculated under regulation 40 (as modified by paragraph (8)) would not change, the chargeable development is the development for which planning permission was granted by the previous permission as if that development was commenced.
(7) Where the effect of the planning permission granted under section 73 of TCPA 1990 is to change a condition subject to which a previous planning permission was granted so that the amount of CIL payable under regulation 40 (as modified by paragraph (8)) would change, the chargeable development is the most recently commenced or re-commenced chargeable development.
(8) For the purposes of paragraphs (6) and (7), the liability to CIL under regulation 40 should be calculated in relation to an application made under section 73 of TCPA 1990 as if the date on which the planning permission granted under that application first permits development was the same as that for the application for planning permission to which the application under section 73 of TCPA 1990 relates
Regards,
Tino
Carol Gore, modified 7 Years ago.
RE: Impact of S73 on CIL - Desperate
Enthusiast Posts: 42 Join Date: 20/10/11 Recent PostsHi Tino,
Regulation 40 would determine whether or not there is a change, and therefore whether or not it would fall under Reg.9(6) or (7).
As per Reg.9(8) The "liability to CIL under regulation 40 should be calculated in relation to an application made under section 73 of TCPA 1990 as if the date on which the planning permission granted under that application first permits development was the same as that for the application for planning permission to which the application under section 73 of TCPA 1990 relates"
So, i may have confused you earlier by not using the correct terminolgy. I mentioned uplift in floorspace because that is generally the only way the chargeable amount could change, because Reg.9(8) stipulates the CIL charageable amount must be calculated as though the S73 was approved on the date the orignial planning permission was approved. Therefore the charge per sqm cannot change, nor can the indexation applied be changed, so the only way the chargeable amount can change is if there is an uplift in floorspace - or, for that matter - reduced.
That is how the S73 is defined as falling under Reg.9(6) or (7).
Hope that helps?
REBECCA STADDON, modified 7 Years ago.
RE: Impact of S73 on CIL - Desperate
Advocate Posts: 103 Join Date: 05/09/13 Recent PostsTino,
I agree with Carol and Simon.
Rebecca