Applications to vary an existing planning permission under section 73 TCPA 1990 can have unexpected results.
Under current CIL legislation, if the new planning permission is granted after a CIL charging schedule comes into force, the new permission can attract a CIL charge - even if the original consent was issued before CIL was in force and /or was subject to a s106 agreement.
The Government recognises the anomally and draft amendments to the CIL Regulations to tackle this and other issues have been laid before Parliament which seek to address (amongst other issues) the impact on section 73 applications.
The Community Infrastructure Levy (Amendment) Regulations 2012 can be found at http://www.legislation.gov.uk/ukdsi/2012/9780111529270. When in force they will insert a further transitional provision to CIL, providing that where a planning permission granted for a development before a CIL charging schedule was in effect is followed by a permission granted pursuant to a section 73 application "in relation to the development" after a charging schedule came into effect, CIL liability will arise in relation to the s73 consent but there will be an offset to the value of any CIL which would have been payable if the development was first permitted by the original consent on the same date that the section 73 consent first permitted it.
Sounds complicated? It appears to mean that if the section 73 consent does not result in an increased floorspace when compared to the original consent, no CIL will be payable. There is a similar provision for applications made under article 18 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 to extend planning permissions granted before October 2009 - where the original consent was granted prior to a CIL charge being brought in, no liability to CIL will arise in respect of the article 18 application (bringing the position in England on time extensions in line with the position in Wales).
Of the more significant other changes the draft regulations also
- make provision for developments granted consent under neighbourhood development orders to be liable to CIL
- amends requirements re publication of charging schedules to extend the relevant provisions to any report made under section 213(3B) of the Planning Act 2008
- amends the calculation of CIL liability- correcting an error which meant that development involving the retention of some existing buildings, and the demolition of others, could have been overcharged!
- amends the calculation of social housing relief- correcting an error which meant that social housing relief may wrongly be granted where a development includes retained housing, some of which will be used for social housing.
Readers may wish to delay applications to ensure that they benefit from the proposed changes. We will update this article when the Regulations are in force.