The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019

Citation, commencement and application

1.—(1) These Regulations may be cited as the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 and come into force on 1st September 2019 (“the commencement date”).

(2) These Regulations apply in relation to England only.

(3) The amendments in regulation 5 (and Schedule 1) do not apply in relation to a planning permission granted before the commencement date or a liability notice, whenever issued, in respect of such a planning permission.

(4) The amendments in regulations 6, 7, 8 apply in relation to any liability notice or revised liability notice issued by a collecting authority under regulation 65 of the Community Infrastructure Levy Regulations 2010(1) on or after the commencement date.

(5) The amendments in regulation 10 apply in relation to any planning obligation entered into on or after the commencement date.

Amendments to the Community Infrastructure Levy Regulations 2010

2.  The Community Infrastructure Levy Regulations 2010 are amended in accordance with the following provisions of these Regulations.

Charging schedules: consultation etc.

3.—(1) In regulation 11(1) in the definition of “consultation bodies” for “regulation 15” substitute “regulation 16”.

(2) In regulation 14(4) for “preliminary draft charging schedule in accordance with regulation 15” substitute “draft charging schedule in accordance with regulation 16”.

(3) Omit regulation 15.

(4) In regulation 16—

(a) in paragraph (1)—

(i) at the end of sub-paragraph (c) for “; and” substitute a full stop;

(ii) omit sub-paragraph (d);

(b) after paragraph (1) insert—

“(1A) The charging authority must invite representations on the draft charging schedule from such of the following as the authority considers appropriate—

(a) persons who are resident or carrying on business in its area;

(b) voluntary bodies some or all of whose activities benefit the charging authority’s area; and

(c) bodies which represent the interests of persons carrying on business in the charging authority’s area.”;

(c) in paragraph (2) after “In this regulation” insert—

“—

“consultation bodies” means—

(a)

each of the following whose area is in or adjoins the charging authority’s area—

(i)

a local planning authority within the meaning of section 37 of PCPA 2004;

(ii)

a local planning authority within the meaning of section 78 of PCPA 2004;

(iii)

a county council;

(b)

each parish council or neighbourhood forum whose area is in the charging authority’s area;

(c)

the Mayor if the charging authority is a London borough council;

(d)

any other person exercising the functions of a local planning authority (within the meaning of TCPA 1990) for an area within, or which adjoins, the charging authority’s area;

“neighbourhood forum” means an organisation or body designated as such under section 61F(3) of TCPA 1990(2);”.

(5) In regulation 17—

(a) omit paragraph (3);

(b) after paragraph (4) insert—

“(5) The charging authority must take into account any representations made to it under this regulation before submitting a draft charging schedule for examination in accordance with section 212 of PA 2008.”.

(6) In regulation 18 omit sub-paragraph (b).

(7) In regulation 19—

(a) in paragraph (1)(b)(i) after “raised by the representations,” insert “and a summary of how the representations received were taken into account,”; and

(b) in paragraph (4) for “regulation 15” substitute “regulation 16”.

(8) In regulation 21(8)—

(a) at the end of sub-paragraph (b) for “; and” substitute a full stop;

(b) omit sub-paragraph (c).

(9) In regulation 25 omit sub-paragraph (c).

(10) In regulation 26(5)(e) omit paragraph (i).

Charging schedules: procedure in relation to a charging schedule ceasing to have effect

4.—(1) In regulation 28 omit paragraph (4).

(2) After regulation 28 insert—

“Charging schedules: procedure in relation to a charging schedule ceasing to have effect

28A.— (1) Subject to paragraph (2), a charging authority (other than the Mayor) which proposes to make a determination under section 214(3) of PA 2008 that a charging schedule is to cease to have effect must—

(a) prepare a statement which provides—

(i) details of the CIL receipts for the period of five years immediately preceding the date on which the statement is first published in accordance with sub-paragraph (d), or, where the charging schedule was not in effect for the whole of the five years, the period during which the charging schedule was in effect;

(ii) an assessment, for the period of five years beginning with the date on which it is proposed the charging schedule will cease to have effect in the area, of the potential effects of the proposal on the funding of infrastructure needs for the area; and

(iii) a summary of the measures (in relation to planning obligations or otherwise) the charging authority has or intends to put in place in relation to funding of infrastructure needs for the area, together with an assessment of how effective the authority considers those measures are likely to be in replacing the funding lost on the charging schedule ceasing to have effect;

(b) make a copy of the documents referred to in sub-paragraph (a) available for inspection at its principal office;

(c) send a copy of those documents to the consultation bodies;

(d) publish on its website—

(i) a statement specifying that the authority proposes to determine under section 214(3) of PA 2008 that a charging schedule is to cease to have effect;

(ii) a copy of the statement referred to in sub-paragraph (a); and

(iii) a statement specifying—

(aa) the period (being not less than four weeks) within which representations about the proposal may be made;

(bb) the address to which, and the name of the person (if any) to whom, representations about the proposal must be made;

(cc) that representations may be made in writing or by way of electronic communications;

(dd) that representations may be accompanied by a request to be notified at a specified address of the decision of the charging authority in relation to the proposal; and

(e) consider any representations made to it under this regulation.

(2) Paragraph (1) does not apply where the determination referred to in paragraph (1) is part of a proposal under which the charging authority replaces a charging schedule (A) with a new charging schedule (B) provided that A ceases to have effect on the same day B takes effect.

(3) Where paragraph (2) applies, in addition to publication of B under regulation 25 a charging authority must continue to—

(a) make a copy of A available for inspection at its principal office and at such other offices within its area as it considers appropriate; and

(b) publish A on its website.

(4) Where a charging authority makes a determination under section 214(3) of PA 2008 that a charging schedule is to cease to have effect it must—

(a) publish a statement of that fact on its website; and

(b) notify the relevant consenting authorities of that fact.”.

Chargeable development and chargeable amount

5.—(1) In regulation 9—

(a) for paragraphs (6) to (8) substitute—

“(6) Where a planning permission is granted under section 73 of TCPA 1990, the chargeable development is the most recently commenced or re-commenced chargeable development.”;

(b) in paragraph (9) for “paragraph (7)” substitute “paragraph (6)”.

(2) For regulation 40 substitute—

“40.   The collecting authority must calculate the amount of CIL payable (“chargeable amount”) in respect of a chargeable development in accordance with the provisions of Schedule 1.”.

(3) For regulation 50 substitute—

“50.   The amount of social housing relief for which a chargeable development is eligible (“qualifying amount”) must be calculated in accordance with paragraph 6 of Schedule 1.”.

(4) In regulation 53(5), after “regulation 50” insert “and paragraph 6 of Schedule 1”.

(5) In regulation 64(4)(b), after “regulation 40” insert “and Schedule 1”.

(6) In regulation 64A(2)(c)(iii)(3), for “regulation 40;” substitute “regulation 40 and Schedule 1.”.

(7) In regulation 65(12)(c)(4) omit “phased”.

(8) In regulation 74B(6)(b)(5), after “regulation 40” insert “and Schedule 1”.

(9) In regulation 74B(13), after “regulation 40”, in each place it occurs, insert “and Schedule 1”.

(10) In regulation 128, for paragraphs (1) and (2) of regulation 128 substitute—

“(1) Subject to paragraph (2), liability to CIL charged by a charging authority does not arise in respect of development if, on the day planning permission is granted for that development, the authority has no charging schedule in effect.

(2) Where the planning permission referred to in paragraph (1) is granted for development by way of a relevant general consent, liability to CIL charged by a charging authority does not arise in respect of that development if—

(a) it is commenced before 6th April 2013; or

(b) on the day on which it is commenced, the charging authority for the area in which the development is situated has no charging schedule in effect.”.

(11) Omit regulation 128A(6).

(12) At the end of the Community Infrastructure Levy Regulations 2010 insert as Schedule 1 the schedule set out in Schedule 1 to these Regulations.

Reliefs: commencement notices and other amendments relating to applications for relief

6.—(1) In regulation 41(1) omit the definition of “by local advertisement”.

(2) In regulation 42B(7)—

(a) in paragraph (2), in sub-paragraph (a) at the beginning insert “subject to paragraph (3A),”;

(b) in paragraph (3) at the beginning insert “Subject to paragraph (3A),”;

(c) after paragraph (3) insert—

“(3A) Paragraphs (2)(a) and (3) do not apply where an exemption for residential annexes or extensions has been granted in relation to a chargeable development and the annex or extension changes after the commencement of that development.”;

(d) in paragraph (4), after “case may be)” insert “and, in relation to an exemption for residential annexes, provide an explanation of the requirements of regulation 67(1)”; and

(e) omit paragraph (6).

(3) In regulation 47—

(a) in paragraph (2), in sub-paragraph (a) at the beginning insert “subject to paragraph (3A),”;

(b) in paragraph (3) at the beginning insert “Subject to paragraph (3A),”;

(c) after paragraph (3) insert—

“(3A) Paragraphs (2)(a) and (3) do not apply where charitable relief has been granted in relation to a chargeable development and the development changes after the commencement of that development.”;

(d) in paragraph (5), for sub-paragraph (b) substitute—

“(b) where relief is granted, the amount of relief granted,

and provide an explanation of the requirements of regulation 67(1).”; and

(e) omit paragraph (7).

(4) In regulation 51—

(a) in paragraph (5), for sub-paragraph (b) substitute—

“(b) if relief is granted, the qualifying amount,

and provide an explanation of the requirements of regulation 67(1).”; and

(b) omit sub-paragraph (a) of paragraph (7).

(5) In regulation 54B(8)—

(a) in paragraph (2), in sub-paragraph (b) at the beginning insert “subject to paragraph (3A),”;

(b) in paragraph (3) at the beginning insert “Subject to paragraph (3A),”;

(c) after paragraph (3) insert—

“(3A) Paragraphs (2)(b) and (3) do not apply where an exemption for self-build housing has been granted in relation to a chargeable development and the provision of self-build housing or self-build communal development changes after the commencement of that development.”;

(d) in paragraph (4), after “case may be)” insert “and provide an explanation of the requirements of regulation 67(1)”; and

(e) omit paragraph (6).

(6) In regulation 57(7) after “relief granted” insert “and provide an explanation of the requirements of regulation 67(1)”.

(7) In regulation 58(6) after “and the Mayor)” insert “and provide an explanation of the requirements of regulation 67(1)”.

(8) In regulation 83—

(a) at the beginning of paragraph (1) insert “Subject to paragraph (1A),”;

(b) after paragraph (1) insert—

“(1A) Subject to paragraph (1B), where a relevant development is commenced before the collecting authority has received a valid commencement notice in respect of the development, then instead of any surcharge which may be imposed under paragraph (1) the collecting authority must impose a surcharge equal to 20 per cent of the notional chargeable amount or £2,500, whichever is the lower amount.

(1B) A collecting authority is not required to impose a surcharge under paragraph (1A) where it is satisfied that the amount of the surcharge is less than any reasonable administrative costs which it would incur in relation to the surcharge.”;

(c) after paragraph (4) insert—

“(5) In this regulation—

“notional chargeable amount” means the amount of CIL that would have been payable, calculated in accordance with regulation 40 and Schedule 1, in relation to the development, as if the relief had not been granted;

“relevant development” means a chargeable development in relation to which a person has been granted—

(a)

an exemption for residential annexes;

(b)

an exemption for self-build housing;

(c)

charitable relief; or

(d)

social housing relief.”.

Section 73 permissions: carry over of relief and instalments

7.—(1) After regulation 58, within Part 6 of the Regulations, insert—

“Carry over of relief in relation to certain section 73 permissions

58ZA.— (1) Where—

(a) any relevant relief has been granted in relation to a development (D);

(b) planning permission (B) is later granted under section 73 of TCPA 1990 in respect of that development; and

(c) the amount of the relevant relief calculated in accordance with this Part of the Regulations that the development is eligible for has not changed as a result of B,

anything done in relation to an application for the relevant relief made in relation to D is to be treated as if it was done in relation to the development that B relates to.

(2) In this regulation “relevant relief” means—

(a) an exemption for residential annexes or extensions;

(b) an exemption for self-build housing;

(c) charitable relief;

(d) social housing relief.”.

(2) In regulation 70(9) after paragraph (8) insert—

“(9) Where—

(a) the amount of CIL in respect of a chargeable development which is granted planning permission is payable in accordance with an instalment policy; and

(b) a new planning permission (B) is later granted in relation to the development under section 73 of TCPA 1990,

then the amount of CIL in respect of the development granted by B is payable in accordance with that instalment policy.”.

Enforcement by taking control of goods

8.—(1) In regulation 95(1) insert the following definitions in the appropriate places—

““enforcement agent” has the meaning given in Schedule 12;”;

““Schedule 12” means Schedule 12 to the Tribunals, Courts and Enforcement Act 2007;”;

““the Schedule 12 procedure” means the procedure in Schedule 12.”.

(2) For regulation 98 substitute—

“Enforcement by taking control of goods

98.   Where a liability order has been made, payment may be enforced by using the Schedule 12 procedure.”.

(3) Omit regulation 99.

(4) In regulation 100—

(a) in paragraph (1) for sub-paragraph (b) substitute—

“(b) the authority has sought to enforce payment by use of the Schedule 12 procedure pursuant to regulation 98 and the enforcement agent reports that they were unable (for whatever reason) to find any or sufficient goods of the debtor to enforce payment; and”;

(b) in paragraph (4) for sub-paragraph (a) substitute—

“(a) the amount outstanding (within the meaning of Schedule 12); and”;

(c) in paragraph (7) for sub-paragraph (a) substitute—

“(a) the amount outstanding (within the meaning of Schedule 12); and”.

(5) In regulation 101(2) for “the appropriate amount mentioned in regulation 98(3)” substitute “the amount outstanding (within the meaning of Schedule 12)”.

(6) In regulation 102—

(a) in paragraph (3) for “regulations 97(2) and 99(2)” substitute “regulation 97(2)”;

(b) in paragraph (4) omit “, 99”.

Annual infrastructure funding statements and CIL rate summary

9.—(1) In regulation 2(1) —

(a) insert the following definitions in the appropriate places—

““acquired land” has the meaning given in regulation 73;”;

““annual infrastructure funding statement” has the meaning given in regulation 121A;”;

““CIL expenditure” includes—

(a)

the value of any acquired land on which development (within the meaning in TCPA 1990) consistent with a relevant purpose has been commenced or completed, and

(b)

CIL receipts transferred by a charging authority to another person to spend on infrastructure (including money transferred to such a person which it has not yet spent),

but excludes CIL receipts which are allocated but not spent;”;

““CIL receipts” means—

(a)

for a charging authority—

(i)

CIL collected by that authority (including the value of any acquired land and the value of infrastructure under an infrastructure payment), but does not include CIL collected on behalf of the charging authority by another public authority but which that authority has not yet paid to the charging authority; and

(ii)

CIL recovered by that authority in accordance with regulation 59E, but does not include CIL not yet paid to the charging authority by the parish council;

(b)

for a parish council, CIL passed to it under regulations 59(4), 59A(2) or 59B, but does not include funds not yet paid to the parish council by the charging authority in accordance with regulation 59D;”;

““planning obligation” except in regulation 122, means a planning obligation under section 106 of TCPA 1990;”;

““relevant purpose” has the meaning given in regulation 73(13);”; and

(b) for the definition of “infrastructure list” substitute—

““infrastructure list”—

(a)

before 31st December 2020, means the list, if any, published by a charging authority of the infrastructure projects or types of infrastructure which it intends will be, or may be, wholly or partly funded by CIL (other than CIL to which regulation 59E or 59F applies);

(b)

on or after 31st December 2020, has the meaning given in regulation 121A;”.

(2) In regulation 58A(10) omit—

(a) ““acquired land” and “relevant purpose” have the same meaning as in regulation 73;”; and

(b) the definitions of “CIL expenditure”, “CIL receipts”, “I_A” and “index figure”.

(3) For regulation 59A(7)(11) substitute—

“(7) The total amount of CIL receipts passed to a parish council in each financial year, in accordance with paragraph (5), shall not exceed—

where—

• I_Y is the index figure for the calendar year in which the amount is passed to the parish council (as determined in accordance with paragraph 1(5) of Schedule 1);

• I_O is the index figure for 2013 (as determined in accordance with paragraph 1(5) of Schedule 1); and

• N is the number of dwellings in the area of the parish council.”.

(4) Omit regulations 62 and 62A.

(5) In regulation 73A(12)(12) for sub-paragraph (d) substitute—

“(d) “relevant infrastructure” means—

(i) the infrastructure projects or the types of infrastructure listed by a charging authority on its infrastructure list; and

(ii) in relation to any time before 31st December 2020, where no such list has been published, any infrastructure; and”.

(6) After Part 10 insert—

“PART 10A Reporting and monitoring on CIL and planning obligations

Annual infrastructure funding statements

121A.— (1) Subject to paragraph (2), no later than 31st December in each calendar year a contribution receiving authority must publish a document (“the annual infrastructure funding statement”) which comprises the following—

(a) a statement of the infrastructure projects or types of infrastructure which the charging authority intends will be, or may be, wholly or partly funded by CIL (other than CIL to which regulation 59E or 59F applies) (“the infrastructure list”);

(b) a report about CIL, in relation to the previous financial year (“the reported year”), which includes the matters specified in paragraph 1 of Schedule 2 (“CIL report”);

(c) a report about planning obligations, in relation to the reported year, which includes the matters specified in paragraph 3 of Schedule 2 and may include the matters specified in paragraph 4 of that Schedule (“section 106 report”).

(2) The first annual infrastructure funding statement must be published by 31st December 2020.

(3) A contribution receiving authority must publish each annual infrastructure funding statement on its website.

(4) Nothing in paragraph (1) requires a contribution receiving authority to include in its annual infrastructure funding statement any information in relation to CIL which it collects on behalf of another charging authority.

(5) In this regulation, “contribution receiving authority” means—

(a) any charging authority which issues a liability notice during the reported year;

(b) any local planning authority (within the meaning in section 1 of the TCPA 1990 as that section has effect subject to sections 2 to 9 of that Act) to which a sum is required to be paid under a planning obligation, entered into during the reported year, or which will receive a non-monetary contribution under the obligation.

Reporting by parish councils

121B.— (1) A parish council must prepare a report for any financial year (“the reported year”) in which it receives CIL receipts.

(2) The report must include—

(a) the total CIL receipts for the reported year;

(b) the total CIL expenditure for the reported year;

(c) summary details of CIL expenditure during the reported year including—

(i) the items to which CIL has been applied;

(ii) the amount of CIL expenditure on each item;

(d) details of any notices received in accordance with regulation 59E, including—

(i) the total value of CIL receipts subject to notices served in accordance with regulation 59E during the reported year;

(ii) the total value of CIL receipts subject to a notice served in accordance with regulation 59E in any year that has not been paid to the relevant charging authority by the end of the reported year;

(e) the total amount of—

(i) CIL receipts for the reported year retained at the end of the reported year;

(ii) CIL receipts from previous years retained at the end of the reported year.

(3) The parish council must—

(a) publish the report—

(i) on its website;

(ii) on the website of the charging authority for the area if the parish council does not have a website; or

(iii) within its area as it considers appropriate if neither the parish council nor the charging authority have a website, or the charging authority refuses to put the report on its website in accordance with paragraph (ii); and

(b) send a copy of the report to the charging authority from which it received CIL receipts, no later than 31st December following the reported year, unless the report is, or is to be, published on the charging authority’s website.

Annual CIL rate summary

121C.— (1) Each calendar year, no earlier than 2nd December and no later than 31st December, a charging authority must publish a statement (“annual CIL rate summary”) in relation to the next calendar year (Y_N).

(2) Each annual CIL rate summary must—

(a) state the name of the charging authority (A) to which it relates;

(b) state the year, Y_N, to which it relates;

(c) state the date when each charging schedule and revised charging schedule, issued by A, took effect;

(d) specify each of the rates, taken from the charging schedule, at which CIL is chargeable in A’s area, together with a description of the development to which the rate applies;

(e) specify, for each rate (R)—

(i) the index figure for the calendar year in which the charging schedule containing rate R took effect (as determined in accordance with paragraph 1(5) of Schedule 1);

(ii) the index figure for the calendar year Y_N (as determined in accordance with paragraph 1(5) of Schedule 1)_;

(iii) the indexed rate calculated by applying the following formula—

where—

• I_Y is the figure referred to in sub-paragraph (e)(ii);

• I_C is the figure referred to in sub-paragraph (e)(i); and

(f)

where A’s area is in Greater London and the Mayor has a charging schedule in effect which applies in all or part of A’s area, include a statement explaining that the Mayor also charges CIL in relation to all or part of the area.

(3) The charging authority must publish each annual CIL rate summary on its website.”.

(7) At the end of the Community Infrastructure Levy Regulations 2010 insert as Schedule 2 the schedule set out in Schedule 2 to these Regulations.

Fees for monitoring planning obligations

10.  In regulation 122(13)—

(a) at the beginning of paragraph (2) insert “Subject to paragraph (2A),”; and

(b) after paragraph (2) insert—

“(2A) Paragraph (2) does not apply in relation to a planning obligation which requires a sum to be paid to a local planning authority in respect of the cost of monitoring (including reporting under these Regulations) in relation to the delivery of planning obligations in the authority’s area, provided—

(a) the sum to be paid fairly and reasonably relates in scale and kind to the development; and

(b) the sum to be paid to the authority does not exceed the authority’s estimate of its cost of monitoring the development over the lifetime of the planning obligations which relate to that development.”.

Removal of pooling restrictions

11.  Omit regulation 123.

Consequential amendments to other secondary legislation

12.—(1) In article 6 of the Local Authorities (Contracting Out of Community Infrastructure Levy Functions) Order 2011(14)—

(a) for “distress”, where it first occurs, substitute “taking control of goods”;

(b) in sub-paragraph (c) for “to levy any amount of distress and sale of goods” substitute “to take control of goods”.

(2) In regulation 34(5) of the Town and Country Planning (Local Planning) (England) Regulations 2012(15)—

(a) for “regulation 62”, where it first occurs, substitute “regulation 121A(1)(b)”; and

(b) for “regulation 62(4) of” substitute “paragraph 1 of Schedule 2 to”.

Transitional and saving provisions

13.—(1) Part 3 of the 2010 Regulations continues to apply, in relation to a draft charging schedule which is published in accordance with regulation 16(1) of the 2010 Regulations before the commencement date, as if the amendments in regulation 3 had not been made.

(2) Where before the commencement date a charging authority has sent a preliminary charging schedule to consultation bodies in accordance with regulation 15 of the 2010 Regulations, the charging authority must take into account any representations made to it before it publishes a draft charging schedule in accordance with regulation 16(1) of the 2010 Regulations.

(3) For the purposes of this regulation—

“the 2010 Regulations” means the Community Infrastructure Levy Regulations 2010;

“commencement date” has the meaning given in regulation 1.

We Consent

Mike Freer

Rebecca Harris

Two of the Lords Commissioners of Her Majesty’s Treasury

4th July 2019

Signed by authority of the Secretary of State for Housing, Communities and Local Government

Kit Malthouse

Minister of State

Ministry of Housing, Communities and Local Government

9th July 2019