Q. 1. What is Infrastructure?
The Planning Act 2008 provides a broad definition of infrastructure and states that it can include the following:
- roads and other transport facilities
- flood defences
- schools and other educational facilities
- medical facilities
- open spaces
- sporting and recreational facilities
Q. 2. Why should development contribute towards infrastructure?
New development will nearly always have some impact on infrastructure with different types and scales of development having different effects. For example, a new single dwelling may not appear to have an impact however the cumulative impact of a number of single dwellings will. It is therefore fair for all new development to pay a share towards the cost of infrastructure, services and amenities that everyone uses and not just large-scale development which has been the case in the past with S106 agreements.
Q. 3. Why are there three different rates for residential development?
There is clear evidence of different house prices in different parts of the Council. The viability report commissioned by the Council showed that areas in zone 1 would not be financially viable if a CIL charge was levied. Whilst in zone 2 a rate of £40 per sq m and in the southern parts of the Council, zone 3 a higher rate of £85 per sq m were found to be viable.
Q. 4. Why are some types of use zero rated in the Charging Schedule?
The Council has set the rate for certain types of development at £0 per sq m in order for them to remain financially viable. Those uses include A3 uses (such as, public houses and cafes) all B uses (i.e. B1 Business, B2 General Industry and B8 Storage or Distribution), C1 Hotels, C2 Residential Institutions (such as nursing homes and colleges and D1 and D2 uses (such as Primary Health Care, places of worship, indoor sports and gyms). Therefore, development of this type will not pay the levy.
Q. 5. What if CIL liability is unclear?
If it is not clear as to whether a development will be liable for CIL, it is recommended that the CIL Additional Questions Form is submitted, and the Council can decide whether the development is CIL liable.
Q. 6. What about Section 106 Planning Obligations.
The ability to use Section 106 planning obligations (in line with the Council’s Supplementary Planning Guidance: Planning Obligations) has not been removed now CIL has taken effect. The CIL Regulations do, however, introduce statutory restrictions on the use of planning obligations once CIL takes effect.The restrictions include the provision that the Council cannot secure planning obligations through Section 106 arrangements for a type of infrastructure once it is identified for delivery through CIL on the Regulation 123 list. This provision is to ensure the Council will not double charge for the same item of infrastructure; it will either be delivered through CIL or Section 106, not both.The purpose of these restrictions is to ensure that the Council will only use Section 106 to secure planning obligations that are directly related to the development, not being delivered through CIL and are necessary to enable the grant of planning permission. Examples being to secure affordable housing, which is outside of CIL or a pedestrian crossing required to mitigate a specific impact. The Council’s Planning Obligations: Supplementary Planning Guidance (SPG) (currently subject to Council approval) provides guidance on the circumstances in which planning obligations will be sought, along with advice on the likely nature of the obligations.
Q. 7. What about S73 applications?
Applications under S73 of the Planning Act 1990 are a special case. In transitional cases, where the original planning permission was granted prior to a CIL charge being brought in but the S73 application is granted following introduction of CIL, the S73 consent will only trigger CIL for any additional liability it introduces to the development (such as increased floor space). Post introduction of CIL, the regulations provide for CIL payments made in relation to a previous consent that has been commenced to be offset against any further liability which arises pursuant to a S73 consent. This can be assessed when forms are submitted.
Q.8. What is the day planning permission first permits development?
The day planning permission “first permits the chargeable development” is for full applications the date on which planning permission is granted unless the development is phased, in which case it may be the date of the final approval of pre-commencement conditions for that phase. for outline planning permissions it is the date of the final approval of the last reserved matter, or, if phased, either the date of the approval of the last reserved matter for a phase or, if earlier and by agreement in writing by the collecting authority, the date of final approval of pre-commencement conditions associated with that phase. in the case of permitted development under a general consent the day on which the collecting authority receives a notice of the chargeable development submitted to it in accordance with Regulation 64 or if no notice of chargeable development is submitted in accordance with Regulation 64, the day on which the last person is served with a notice of chargeable development in accordance with Regulation 64A(3).
Q. 9. How is CIL calculated?
The amount of CIL payable will be the net chargeable floor area of the building multiplied by the CIL rate, adjusted for inflation. For new dwellings the CIL rate varies by geographical zones. Garages and other ancillary buildings that form part of the proposals for which planning permission is sought are liable for CIL.The net chargeable floor area amounts to the gross internal area of the chargeable development less the gross internal area of any existing buildings within the application site that meet the criteria.Standard formulae defined nationally in the CIL Regulations are used to determine the CIL liability. The charges in the Council’s Charging Schedule feed into the calculation.The calculation involves multiplying the Council’s CIL charging rate by the net increase in GIA and adjusting for inflation.The All-in Tender Price Index is an inflation index published by the RICS Building Cost Information Service and the figure used for CIL purposes for any given year is the figure for November of the previous year.
Q. 10. Is CIL payable on garages and car ports?
Garages that are an integral part of planning applications for new houses count as residential floor space and are liable for CIL whether integral to the new house design or detached. An application for a new garage for an existing dwelling will not normally be liable for CIL as the floor space will be less than 100 sq m.No CIL is payable on car ports.
Q. 11. Should loft areas be included in the calculation of CIL floor space?
Loft space that is not generally accessible except via a loft ladder should not be included as chargeable floor space. Loft space that is used as rooms with stairs or a permanent ladder is chargeable floor space. This includes accessible storage areas.
Q. 12. Sub-dividing a house into two or more homes.
There is no CIL unless additional floor space is provided as part of the scheme in which case the additional floor space may be liable.
Q. 13. Is CIL chargeable on mobile homes?
No CIL can only be charged on buildings. Mobile homes are not normally buildings as defined by law and therefore no CIL will be charged on them unless the proposal is considered to be a building.
Q. 14. Situations when a development may be able to apply for CIL relief.
In most situations CIL liable development will have to pay the CIL in accordance with the rates set out in the Charging Schedule however there will be certain situations when a development may be able to apply for CIL relief. Relief from the levy may be available in five specific instances: Charitable Relief, Social (Housing) Relief, Exceptional Circumstances Relief and Exemption for self build housing and extensions/annexes. However, no relief from the levy is applicable unless the claimant is an owner of a material interest in the relevant land. The Council has resolved not to grant exceptional relief from liability to pay CIL on any chargeable development however this will be subject to a future review.Please refer to the following Guidance Notes for more information:Guidance Note 3: Charitable Development Relief (pdf), Guidance Note 4: Social Housing Relief (pdf) (Also, refer to the Council’s Discretionary Social Housing Relief Policy) Guidance Note 5: Exemptions for Self Build Properties, Extensions and Annexes(pdf).
Q. 15. What if existing buildings are being demolished or converted?
The Gross Internal Area of any existing buildings on the land to which planning permission relates that are going to be demolished or re-used may be deducted from the calculation of CIL liability provided that they are permanent and substantial buildings. However, deductions are only applied where those buildings have been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development (see question 8 What is the day planning permission first permits development?). In this context “in-use” means that at least part of the building has been in use. A ‘lawful use’ is a use, operation or activity for which a building is used that is lawful for planning control purposes and the term ‘in-use’ for CIL purposes includes use of all or part of the building for any purpose associated with the lawful use. Where an existing building does not meet the six month lawful use requirements its demolition or partial demolition is not taken into account. If demolition is involved it is important that the CIL Additional Question Form clearly sets out the lawful use, location and floor space of each of the buildings to be demolished and that the scaled plans submitted with your application clearly show the buildings that will be demolished as well as any new buildings proposed.It is the applicant’s responsibility to provide evidence to the effect that building(s) are a permanent and substantial structure, “in lawful-use” and that all or part of the building has been ‘in-use’ for a continuous period of at least six months within the period of 36 months ending on the day planning permission first permits the chargeable development. Applicants should be aware that the CIL Regulations allow an authority to deem the gross internal area of a building to be zero for the purposes of a deduction if it does not have sufficient information or if the information is of insufficient quality to establish the areas of the lawful use. Definition of “in-use” The definition of “in-use” is contained in Regulation 40(11) of the Community Infrastructure Levy Regulations 2010 (as amended). This states that a “in-use building” is a building which“contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development.
Q. 16 What if my development is Permitted Development/ or for Prior Approval?
Development permitted under a ‘general consent’ such as permitted development or prior approval is CIL liable, that is, its fees will be calculated in line with the Council’s Charging Schedule. If you intend to commence development under a general consent and the development is CIL liable you will need to submit a Notice of Chargeable Development to the Council before you commence the development. The CIL charge is then calculated and applied as though planning permission had been issued.
Q. 17 Can CIL payments to phased?
Subject to Council approval a planning application can be subdivided into ‘phases’ for the purposes of the levy. The Regulations allow for both detailed and outline permissions (and therefore ‘hybrid’ permissions as well) to be treated a phased development for the purposes of the levy. This means that each phase would be a separate chargeable development and therefore liable for payment in line with the Council’s Instalments Policy.
Q. 18 My development is not viable, what are my options?
The rates set out within the Charging Schedule have been to independent examination, the examination concluded that the overall rates for retail (Class A1) and residential development (split into zones 1, 2 and 3) across the County Borough were based on generally reasonable assumptions about current local development values and likely costs. All planning permissions that are CIL liable issued on or after the Council’s CIL implementation date will have to pay the CIL rate in accordance with the Charging Schedule.Although the CIL is not negotiable, save for the Social Housing Relief, Charitable Relief and Exceptional Circumstances Relief a viability argument can be made to review the planning obligations within the S106 Agreement. Therefore if viability is considered to be an issue then the following options are open: Identify if the scheme satisfies one or more of the relief criteria. Submit a viability assessment to review level of planning obligations in the S106 Agreement. Please refer to the Council’s Supplementary Planning Guidance: Planning Obligations on Developer Contributions (pdf).
Q. 19 What happens if I do not pay the charge?
Unlike Section 106 obligations, CIL is not a negotiated process. If a development is liable for CIL, payment is mandatory. There are strong enforcement powers and penalties for failure to pay, including Stop Notices, surcharges, late payment interest and prison terms. Further information can be found in CIL Guidance Note 7: Possible consequences of non-payment of CIL (pdf).
Q. 20. Will discretionary relief from CIL in exceptional circumstances be made available by the Council?
The Council has not made discretionary relief from CIL in exceptional circumstances available in its area. However, the Council has made provision to introduce such relief should the need to offer it become apparent. The Council does not wish to lead developers to the conclusion that such relief will ordinarily be made available. The circumstances in which such relief can be made available are expected to be genuinely exceptional.Developers should note that one of the conditions for offering discretionary relief from CIL in exceptional circumstances is that a Section 106 agreement has already been entered into. Consequently, the Council understands that discretionary relief in exceptional circumstances can only be offered where economic circumstances change significantly after planning permission has been granted and the developer can demonstrate that the circumstances are such that his or her ability to deliver the development is significantly compromised by the changed circumstances.
Q. 21. Is there scope to make ‘payment in kind’ instead of making the required cash CIL payment?
In accordance with Regulations 73, 73A, 73B and 74 of the Community Infrastructure Levy Regulations 2010 (as amended), Rhondda Cynon Taf, as the charging authority for the area, will allow payment of CIL by land payments or infrastructure payments. The‘payment in kind’ mechanism is offered at the Councils discretion. If you are interested in paying CIL in either or both of these ways you should discuss the possibility with the Council as soon as possible.The Payment in kind – Land and Infrastructure Payment Policy is effective from16th September 2016.
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