Michelmores LLP
Posted on 13 Feb 2020
By Michelmores LLP

Amending an existing planning permission: considering the Community Infrastructure Levy (CIL)

Planning Permission Conditions

All planning permissions are granted subject to compliance with particular planning conditions. These can specify details like the time limit for beginning the work, materials to be used, requirements to protect the surrounding environment or the provision of access, parking and traffic management plans. 

Amending or Removing Conditions

This may be necessary in cases where the development in question has not complied with a specific planning condition and now needs to be ratified through retrospective planning permission. 

An application to amend or remove any conditions attached to an existing planning permission, constitutes a new planning application, courtesy of section 73 Town and Country Planning Act 1990.  The relevant local authority can decide whether to grant this S.73 planning permission unconditionally (without the previous conditions), impose alternate conditions, or refuse the application if they consider the previous conditions to be appropriate. Whatever their decision, the validity of the previous planning permission is not affected. 

The Community Infrastructure Levy (CIL)

This is a contribution by the developer, imposed as a planning charge (not a condition) by some Local Authorities in order to fund infrastructure projects within their area. The levy amount is expressed in pounds per square metre and the rate varies depending on the Local Authority's charging schedule. 

The CIL Consequences of a Section 73 Planning Permission:

If a S.73 Planning Application is approved then it is important to consider how this will impact on the CIL a developer is liable to pay. There are three possible scenarios: 

1. The Local Authority has not adopted CIL. 

If the local authority has not adopted CIL then the S.73 Planning Permission will not be subject to CIL. 

2. The Local Authority has adopted CIL, however the existing planning permission was granted before the Local Authority adopted CIL. 

On the grant of the S.73 Planning Permission the developer will be liable to pay the difference between: the CIL payable if the CIL regime had been in place at the time the existing planning permission was granted (the theoretical amount) and the amount payable under the S.73 planning permission (the actual amount). 

The developer will only be liable if the actual amount exceeds the theoretical amount, for example: if the S.73 planning permission includes an increase in the gross internal area of the development permitted by the existing planning permission.

3. The Local Authority has adopted CIL and the existing planning permission was granted when the Local Authority adopted CIL. 

The developer is liable to pay the amount of CIL due under the existing planning permission plus the amount that the CIL due under the S.73 planning permission exceeds the original amount. Therefore the total amount of CIL payable would only increase if the CIL contribution due under the S.73 planning permission was higher than the amount due under the existing planning permission. 

The consequences of non-compliance with the CIL can include the addition of surcharges by the Local Authority, high interest rates being imposed on the unpaid amount and the enforcement of a Stop Notice preventing any further development.