Planning

Community Infrastructure Levy

In the February 2010 edition of property update we reported on the final draft of the Regulations introducing the Community Infrastructure Levy (CIL). The Regulations are now in force (as from 6 April 2010) and the Government has published an overview and guidance on charging. The key points are:

• CIL is a voluntary charge, imposed at the discretion of the relevant local authority
• CIL will take the form of a fixed charge to be imposed on new developments by reference to floorspace created
• CIL charging tariff to be imposed through policies in the Development Framework
• Policies will be subject to review by an examiner whose report is binding on the local authority
• Authorities have draconian enforcement powers
• Planning obligations will be scaled down.

CIL is anticipated to be introduced by 2014. However, it is difficult to square this aim with the clear statement that the levy is discretionary.

In addition, it seems unlikely that local authorities will invest scarce resources in developing their policies relating to the levy until after the general election. The Conservative party has indicated that they will not continue with the CIL in its present form and have suggested that the Regulations will be revoked.

Most local authorities have not undertaken detailed work in relation to CIL and it is not anticipated that charging tariffs will be in place in many areas for some time. However, there are some authorities who are more advanced in their planning.

Despite the uncertainty created by the forthcoming election, issues which need to be considered immediately, and with which we can help, include:

1. Do your development agreements or contracts need to provide for CIL?
2. Who is liable to pay CIL?
3. Does there need to be an indemnity given by the paying party to the other(s)?
4. Do the parties understand the serious consequences of non-payment?

For advice on the CIL, please contact Jan Hebblethwaite, jan_hebblethwaite@wragge.com, or Lee Nuttall, lee_nuttall@wragge.com.

Consultation on new policy document for planning obligations

Currently, guidance on planning obligations and their use is contained in Circular 05/05. With the introduction of CIL, the use of planning obligations will be curtailed where the levy is "capable" of being charged.

This appears to mean that where an authority could have set a charging tariff under the CIL Regulations there will be restrictions on the use of planning obligations, even where no tariff has actually been set.

Information on the consultation can be found on the Communities and Local Government website. When introduced the new guidance will replace circular 05/05.

Effect of failure to require an environment impact assessment

The local planning authority granted planning permission for a mixed office and residential scheme and outline permission for further residential development and relocation of the United Services Club. The claimant alleged that the development was one to which the Environmental Impact Assessment (EIA) Regulations applied and sought judicial review of the decision to grant the permissions.

The developer's agent had requested a negative screening opinion from the local authority (i.e. that no EIA was required). The authority confirmed that the proposed development was not EIA development and no EIA would be required.

The claimant alleged that the authority had insufficient information available to it to make such a determination.

The EIA Regulations apply to applications for development falling within Schedule 2 to the Regulations where the development is likely to have a significant effect on the environment. No decision can be made on such applications unless environmental information has first been taken into account.

While it was common ground that the proposed development was within Schedule 2, the question was whether it would have the "significant effects" which would have required the submission of an EIA with the application.

The court held that the authority did not have sufficient information to reach an informed judgment as to whether the proposed development would have a significant effect on the environment. The planning permission was therefore quashed.

Co-operative Group -v- Northumberland CC

Changes to permitted development "rights"

Certain development does not require express planning permission, under the Town and Country Planning (General Permitted Development) Order.

The Amendment Order 2010 provides that shops may be extended by up to 50 sq m without the need to apply for permission. It will also be easier for schools, universities and hospitals to build new facilities.

Future amendments to the Order will make similar changes to permit the replacement of shop fronts and the installation of cash points.

Changes to Use Classes Order for Dwelling Houses and Houses in Multiple Occupation (HMOs)

The Use Classes Order sets out classes of use, within which certain changes of use do not require planning permission.

Previously, dwelling houses fell within Class C3 and included houses occupied by up to six people living together as a household.

Class C3 has been split so that it now covers:

C3(a) - a single household - a family (no limit on number)
C3(b) - those living together as a household and receiving care (limited to six people)
C3(c) - those living together as a household and not within C4 (limited to six people).
Note that C3 does not include bed sits.

Class C4 (house in multiple occupation) covers small shared dwelling houses occupied by between three and six unrelated people who share basic amenities. This includes bed sits. Note that the class does not include a property occupied by, say, the owner and up to two lodgers.

To qualify as an HMO, the property does not need to be converted or adapted in any way.

Large HMOs (i.e. those with more than six people sharing) are not within the Use Classes Order.

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