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[22/06/12]The Nooks and Crannies of CIL
[20/06/12]Guide to the Local Development Framework Process
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The Nooks and Crannies of CIL

An interesting note via Southwark and their queries with the GLA giving an interpretation of CIL Regulations. It deals with,

- when is a temporary permission not temporary?

- when is a Use, not a Use?

- when is a Charity, not a Charity?

Of particular interest to me is the issue of ‘Use’. The note considers the issue of whether vacant floorspace is in ‘use’ for the purpose of the CIL Regs, and whether it counts as a ‘credit’ against new floorspace being created, thereby reducing CIL liability. The note states;

“Under regulation 40, account can be taken in calculating the chargeable amount, of buildings that are situated on the relevant land and in lawful use. Paragraph (10) says that:

“For the purposes of this regulation a building is in use if a part of that building has been in use for a continuous period of at least six months within the period of 12 months ending on the day planning permission first permits the chargeable development”

The question has been raised whether “use” means:

- occupation and use, or

- whether it should be given the meaning given the term in planning law , under which a building’s use does not necessarily lapse simply because it is no longer occupied, in the absence either of evidence of “abandonment”.

The GLA has taken advice from Leading Counsel, who has advised that the given the way regulation 40(10) is worded it is the first of these meanings that should be given. To be taken into account in the calculation, it should be shown that the building (or part of the building) has been in actual use for a continuous period of six months in the period of twelve months ending with the granting of planning permission.

This means, for example, that if an office building has been vacant for longer than the period specified in the Regulations it may not be taken into account even where it can be shown, as a matter of planning law, that the office use has not been abandoned. It is likely to have particular implications for projects that involve the large scale emptying of buildings before development takes place, such as estate renewal schemes.

Developers wanting to ensure that “emptied” buildings are taken into account will need to ensure that some element of lawful and actual use remains on site.”

Having worked on a number of BPRA funded schemes, bringing back into active use empty office buildings where by definition the buildings must have been vacant for over 12 months to qualify for the BPRA Government Tax Incentives – this interpretation of the CIL Regs presents a dilemma. It seems odd to depart from long established principles of Planning Law about the use of buildings – there is also a sense of a lack of ‘natural justice’, that for reasons often beyond the control of an applicant, two identical schemes under the same CIL regime could have substantially different CIL liabilities, simply because one has been occupied, and the other not. More often or not, one might think that it is the vacant scheme, where lettings have been hard to come by, and investment already struggling, that is going to be hit harder, than a redevelopment scheme in a more prosperous area where lettings are easier to come by.

Keith Fenwick, Director – Birmingham.

COMMUNITY INFRASTRUCTURE LEVY COLLECTION AND IMPLEMENTATION ADVISORY GROUP-1.doc

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Guide to the Local Development Framework Process

With the introduction of the Planning and Compulsory Purchase Act 2004 (as amended), all Local Authorities were required to replace their Local Plans with a Local Development Framework (LDF). The LDF is used in the same way as the Local Plan, but is made up of a number of documents rather than a single development plan. These individual documents are known as the Local Development Documents (LDDs). Some of these are statutory planning documents known as Development Plan Documents (DPDs). These documents are required by law and will, once adopted, form the basis for decision making on planning applications.

Other documents will also be produced which are not statutory development plan documents. These are known as Supplementary Planning Documents (SPDs), prepared by Local Authorities to provide additional guidance and detail to a policy within a Development Plan Document.

The preparation of each DPD will follow approximately the same process, split in to a number of separate stages, namely:

- Issues and Options

The Local Authority will consult everyone with an interest in the area to help to identify the key issues and suggested options for addressing these. Comments received will be used to influence the next stage.

- Preferred Options

Following previous consultation, the Local Authority will publish another document considered to be the ‘preferred’ approach for their area. Comments at this stage will influence the content of the Submission Draft Document.

- Submission Document

The submission draft is the document that the Local Authority would like to see as its final version. This is also the final public consultation stage before the document is formally submitted to the Secretary of State for independent examination. Comments made at this stage, which are objecting to the content, or how the plan was prepared, will be considered by the inspector at examination.

Public consultation at each of these stages will last for at least six weeks, and details of this public participation must be detailed in a Statement of Community Involvement (SCI) and the process must be carried out in accordance with this. There may also be an initial informal stage of consultation at the start of the process and additional consultation periods during the process if significant changes are made to the documents, following each statutory stage of consultation.

Following the completion of all stages of consultation, the document will be submitted to the Secretary of State, for examination. All DPDs will be subject to an independent examination by an inspector who will use a number of tests which assess how documents have been prepared and their content. This test is known as the ‘Test of Soundness’. All representations received will be examined and if a document is found to be ‘sound’, the Council can formally adopt the document and this will then be used in the decision making process.

Following examination, the Inspector will send a Binding Report to the Local Authority which may recommend changes to the Development Plan Document. The Authority must take these on board. Following this process, the Council may then formally adopt the Development Plan Document

London

The Development Plan for London Boroughs, at the regional level, comprises the London Plan (July 2011) and Supplementary Planning Documents, as produced by the Greater London Authority (GLA). In addition to this, the Mayoral Community Infrastructure Levy (CIL) came into force on 1^st April 2012 with the remit of collecting funds for the Crossrail project. This sets a fixed contribution, based on floorspace created, set at 3 different levels, depending on the London Borough within which the development is proposed, and is applicable to the majority of new developments where floorspace is created.

At the Borough level, the DPD’s consist, in most cases, of a Core Strategy, Development Management Policies and Site Specific Allocations, although these documents may sometimes be merged. The Boroughs will also have a proposals map, which may be rolled into one of the other DPD’s, or be a standalone DPD in its own right. All Boroughs will also need to produce a CIL Charging Schedule, which must also undergo consultation. The purpose of each document is as follows:

- Core Strategy: sets out a strategic vision, spatial strategy and core policies to guide development and change

- Development Management Policies: supports the Core Strategy and London Plan and sets out the Boroughs detailed policies for managing development

- Site Specific Allocations: document will allocate and designate areas of land for particular uses such as Housing, Employment, Retail, Recreation and Open Space, where development or other change is anticipated.

- Proposals Map: illustrates the spatial policy designations that flow from adopted planning policies and must reflect the policy context as contained within the DPD’s

- CIL Charging Schedule: sets out the Boroughs proposed charge, based on floorspace created, to fund improvements in the area in infrastructure and facilities, to benefit the local community

Following publication of the NPPF in March 2012, which replaced a raft of other planning policy at the national level, each planning authority will need to consider whether their Development Plan Documents conform with the new national policies. Plans that are out of date or not in conformity risk being superseded by the policies of the NPPF and hence it is expected that authorities will bring forward changes where necessary over the coming months’

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