Planning matters

Consultation on “Levelling-up and Regeneration Bill: reforms to national planning policy” began on 22 December and runs for just over two months until Thursday 2nd March 2023. The consultation:  Sets out NPPF amendments intended to be made quickly  Discusses the potential scope of a future NPPF consultation, to be carried out alongside a consultation on the first National Development Management policies  Proposes other policies and legislation that would be enabled by Royal Assent of the Levelling Up and Regeneration Bill  Includes policy and legislation related to other primary legislation and topics This blog explains the scope of the consultation, provides a speedy overview of the proposed changes to the text of the NPPF and looks at the evolution of the concepts of National Development Management Policies and seeking to monitor and manage build out rates. Proposed NPPF Revisions and Wider Policy Consultations Speedy NPPF revisions Levelling Up and Regeneration Bill: consultation on future “wider changes” Role for National Development Management Policies Tracking build out rates Further consultations on wider policy changes Opportunities to engage and influence   Proposed NPPF Revisions and Wider Policy Consultations An NPPF “prospectus” was long anticipated and more recently reference was made to a revised NPPF. This consultation is both; it includes draft revised text and a proposed direction of travel for national policy flowing from the Levelling Up and Regeneration Bill’s anticipated Royal Assent in the Spring. It seems likely that the consultation that has emerged did so following backbencher pressure on the Government to amend housing policy, to promote onshore wind development and to give additional policy protection to agricultural land used for food production. But in addition to draft text on these matters are longer awaited proposals: the consultation “signals areas that we expect to consider in the context of a wider review of the Framework to follow Royal Assent of the Bill. The government will consult on the detail of these wider changes next year, reflecting responses to this consultation”. The latest proposals are to be read alongside the policy paper which accompanied the introduction of the Levelling Up and Regeneration Bill, demonstrating that this consultation presents limited evolution of those May 2022 proposals - which broadly remain current. The national policy review coming next year will be far wider in its scope and will pick up various changes to legislation and national policy over the last few years, including use class E and First Homes, for example. It will also propose how to separate the  refocused plan making elements, which will become the “residual NPPF” from the decision making parts of the NPPF that will evolve into the some of the first National Development Management Policies (NDMPs).   Speedy NPPF revisions The consultation’s focus is on speedy changes to the NPPF that are intended respond to November’s backbench rebellions[1]. Subject to the consultation outcome, changes to the NPPF are to be published by Spring 2023, or perhaps during Spring 2023, given that the consultation ends on 2nd March. The Government also intends to reset its purported course to deliver 300,000 homes a year by the mid-2020s and to secure more quality homes in the right places through the adoption of local plans. To these ends, six of the eight bullets (below) that summarise the proposed amendments to the NPPF, relate solely to housing. One of the remaining two deals with food security and protection of farmland. And although it refers to planning decisions broadly, this proposed policy wording responds to lobbying by MPs and the National Farming Union against “solar, nature and housebuilding being considered more important while farmland and food security is the poor relation”. The remaining bullet also relates to energy. In his blog ‘So Far As Possible’ – will the Housing Delivery Test lose its teeth?, Ed Clarke analyses the future of the housing delivery test in light of these new proposals. He notes “The section on the Housing Delivery Test has been amongst the most contentious – and the key focus of pre-publication intra party politicking”. The proposed immediate amendments to the NPPF, summarised by the Government are:  “make clear how housing figures should be derived and applied so that communities can respond to local circumstances;  address issues in the operation of the housing delivery and land supply tests;  tackle problems of slow build out;  encourage local planning authorities to support the role of community-led groups in delivering affordable housing on exception sites;  set clearer expectations around planning for older peoples’ housing;  promote more beautiful homes, including through gentle density;  make sure that food security considerations are factored into planning decisions that affect farm land;  and enable new methods for demonstrating local support for onshore wind development”. No immediate changes to the standard method to calculating local housing need are proposed. Annex 1 of the NPPF is to be updated to provide additional transitional arrangements. The Government says the consultation “will allow us to swiftly deliver the government’s commitments to building enough of the right homes in the right places with the right infrastructure, ensuring the environment is protected and giving local people a greater say on where and where not to place new, beautiful development. They will also allow us to deliver cheaper, cleaner, more secure power in the places that communities want to see onshore wind”. Throughout the document, changes that go beyond this are described as forming part of next year’s wider or fuller review of the NPPF.   Levelling Up and Regeneration Bill: consultation on future “wider changes” More information on two of the Bill's key new development management related proposals is provided in the consultation: national development management policies and build out rates.   Role for National Development Management Policies   Where would NDMPs fit in? National Development Management Policies (NDMPs) would be national policy with statutory weight to be attached to them – acting as ‘top trumps’ in effect. Clause 86 of the Bill would amend Section 38 of PCPA 2004 to provide that for the purposes of any determination to be made under the planning Acts “the determination must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise”. It would also provide that “If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.” The consultation includes a figure showing where NDMPs fit into in decision making: Source: “Levelling-up and Regeneration Bill: reforms to national planning policy” (Figure 2) As previously advised by the Government, NDMPs would be set out in a separate yet-to-be consulted upon document suite. The “residual” NPPF would focus on plan-making principles and requirements. The consultation explores the potential scope of NDMPs in a limited way, raising as many questions as answers.   NDMP principles and categories Three guiding principles for drafting NDMPs are proposed:  “Covering only matters that have a direct bearing on the determination of planning applications;  Limited to key, nationally important issues commonly encountered in making decisions on planning applications across the country (or significant parts of the country); and  solely addressing planning issues, in other words that concern the development and use of land. National Development Management Policies would not address subjects which are regulated through other legislation, for example the building regulations or acts relating to public health, pollution, and employment; although we are minded to retain the scope for optional technical standards to be set locally through plans, where these remain appropriate, so that local planning authorities can go above certain minima set through building standards”.   It is proposed that the parts of the NPPF that apply to decision-making would be the starting point for creating NDMPs, with views invited on other “topics”. Existing NPPF policies aimed at decision-making would be one category of NDMP; the Government suggests two others:  “Selective new additions to reflect new national priorities, for example net zero policies that it would be difficult to develop evidence to support at a district level, but which are nationally important.”  “Selective new additions to close ‘gaps’ where existing national policy is silent on planning considerations that regularly affect decision-making across the country (or significant parts of it).” The Government asks “Do you agree that selective additions should be considered for proposals to complement existing national policies for guiding decisions?” The consultation itself suggests just three “gaps”: carbon reduction in new developments, allotments and housing in town centres and built-up areas as additional potential topics to develop NDMPs. However, inclusion of allotments is questioned by the consultation itself: “This may not require an individual National Development Management Policy but, instead, might be incorporated into a wider policy on protection of green spaces”. And the document suggests that the carbon reduction policy might be a baseline with local planning authorities able to set further measures, rather than a standalone policy. Would national policy from which local policies are to be derived be better placed in the plan-making NPPF rather than in NDMPs? Or is it better to ensure a national baseline via NDMPs while allowing some local tweaking, although the debate on local policy would negate some of the intentions of NDMPs, i.e. to speed plan-making and reduce policy related uncertainty? The consultation asks separately: Do you think that the government should bring forward proposals to update the Framework as part of next year’s wider review to place more emphasis on making sure that women, girls and other vulnerable groups feel safe in our public spaces, including for example policies on lighting/street lighting? To my mind, such a policy topic is a good example of a potential NDMP? Does this consultation question infer that we will have another revised NPPF before NDMPs are in force? If the text of the next revision of the NPPF is to be published alongside consultation on draft NDMPs, this could be the case. Or it could just be an example of the future national policy split between the NDMP suite and the plan-making NPPF not yet being known.    NDMPs Influence In drafting NDMPs the future status of National Planning Policy for Waste and Planning Policy for Traveller Sites, which sit alongside the NPPF, will be considered. The Government’s aim is that “In developing National Development Management Policies, we will seek to support faster plan-making without undermining community control”. In my view, the following is the key paragraph of the consultation on what a significant shift NDMPs would provide (my emphasis): “They will provide greater assurance that important policy safeguards which apply nationally, or to significant parts of England (such as protections for areas at risk of flooding, policy on climate change, and policies to protect the Green Belt) will be upheld with statutory weight and applied quickly across the country, including when any changes are made; and […]” Applied quickly across the country is a key driver for the introduction of NDMPs; potentially overnight, national policy could be changed and have full weight in the decision-making process. This would introduce a top down development management system with capability to be nimble and dynamic in devising development management policies, but as a consequence could create uncertainty, unless the scope of NDMPs and a requirement for genuine consultation is defined in law. The Government acknowledges that some NDMPs may require environmental assessment, which might slow down their publication somewhat.   Design Codes Design Codes, once forming part of the development plan, will have the same weight as NDMPs, unless in conflict with them, and the proposed consultation on NDMPs is to include discussion on the new weight to be given to design codes.   Tracking build out rates On housing, measures already included in the Bill seek to “incentivise the prompt build-out of permitted housing sites and to support local authorities to act against those who fail to meet these commitments”. The use it or lose it provisions in the Bill as presented to Parliament are explained in this Lichfields Planning Matters blog. During the passage of the Bill, a new provision was added, requiring developers to provide local planning authorities with progress reports about the actual and projected delivery of new homes for each reporting period (annually until completion), on sites with residential planning permission. The consultation document announced three policy measures to “strengthen” the legislative package and a separate consultation on a financial penalty against developers who are building out too slowly. The national policy measures proposed are:  Publishing data on developers of sites over a certain size in cases where they fail to build out according to their commitments.  Requiring developers to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate (rate at which homes are sold or occupied).  Proposed delivery trajectory would be a material consideration in planning applications, such that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances.  According to the Government: “These measures will improve transparency and public accountability over build out rates once permission is granted, empower local authorities to take account of build out considerations when making planning decisions, and give authorities stronger tools to address build out problems where they arise. We are seeking initial views, ahead of consultation as part of a fuller review of national planning policy next year”.   Further consultations on wider policy changes Further consultations will follow this year, including significant proposed changes to the Framework itself, depending “on the implementation of the government’s proposals for wider changes to the planning system, including the LURB”. Those anticipated within the document include:  the first draft National Development Management Policies  NPPF refocused on plan-making policies  potential ways to improve developer accountability and, in particular, take account of past irresponsible behaviour in decision-making  introduction of a financial penalty against developers who build out “too slowly”  national policy on build out rates  permitted development rights and design codes  the design of the infrastructure levy  increase to planning fees  exploring how to do more through planning to measure and reduce emissions in the built environment, ahead of the wider NPPF review.  Neighbourhood Priorities Statements (a formal input to a local plan) and Street Votes (will be ‘supported’ by the wider review of the NPPF (if the outcome is as consulted upon) - might consultation on the legislation associated with these proposals take place too?)  review the implications on the standard method of new household projections data based on the 2021 Census, which is due to be published in 2024.  the details of the “alignment policy” that will replace the duty to cooperate     The future consultation on updating national policy – to NDMP or not NDMP Overarching updates required to national policy to be consulted on, are identified in an “indicative and not exhaustive” list in the table at Chapter 12 of the consultation “Chapter 12 - Wider changes to national planning policy in the future”. Indeed, some matters on which views are being gathered now ahead of "a fuller view of national policy" are not included in the indicative list, such as potentially strengthening of the existing small sites policy and "small scale nature interventions". The consultations on the first draft National Development Management Policies and a revised NPPF, refocused on plan-making policies, are to be undertaken together, following Royal Assent of the LURB. Some national policies would remain in the residual “NPPF” others might become NDMPs, with new policies being added to both documents. It is not yet determined which category national policies will fall into, so there is still a chance to influence this (see questions 49-52). Not all of these proposed updates relate to recent changes. The intention to “review the approach to town centre and out-of-centre development in the light of the Use Class Order changes” as part of the “full NPPF consultation”, rather than now, notwithstanding that these changes came into force two years ago, is an example of the reactive nature of this housing-focused NPPF consultation (to backbencher pressure).    Opportunities to engage and influence It is clear that the Government intends for significant and far-reaching consultations on planning to take place during 2023. The format of this current consultation allows a great deal of scope to positively influence several future consultation documents, in addition to submitting comments on the immediate proposed changes to the National Planning Policy Framework. Lichfields will continue to closely monitor and analyse progress on the NPPF, Bill and associated policy and secondary legislation, which we would be happy to discuss. Department for Levelling Up, Housing and Communities, Levelling-up and Regeneration Bill: reforms to national planning policy, Open Consultation, 22 December 2022   [1] BBC News, Vote delay reopens Conservative divisions over housing, 23 November 2022BBC News, Liz Truss and Boris Johnson join Tory wind farm rebellion, 24 November 2022Farming UK, Government agrees to bolster protection of farmland in Levelling Up Bill, 15 December 2022     

Update 17 March 2023 The Government is consulting on the details of the proposed Infrastructure Levy from until 9 June 2023. This blog continues to provide the up-to-date position on the Infrastructure Levy proposals in primary legislation, but may be out of date in some places where it speculates about the detail. Update 22 December 2022 The Government's consultation Levelling-up and Regeneration Bill: reforms to national planning policy made very brief reference to the proposed Infrastructure Levy - essentially there will be consultations in 2023.  ____________________________________________________________ A new non-negotiable locally determined Infrastructure Levy (IL) system is to be rolled out gradually across England. And gradually means gradually; the Government anticipates it would take several years until IL is required across England. So, while IL would be emerging in some areas, the community infrastructure levy (CIL) would continue to apply in others and CIL would not disappear at all at strategic level (specifically the Mayoral CIL in London, at present) or in Wales. The intentions are that IL rates would be a percentage of the final ‘gross development value’ (GDV) of a scheme or phase of a scheme, above a minimum levy threshold. Often, this would be the scheme’s GDV when sold, but in many instances a valuation will be required. Therefore, when a scheme is commenced, the final amount payable would not be known. Unlike CIL, IL financial or in-kind contributions would include affordable housing. How IL is to be spent would be set out in an ‘infrastructure delivery strategy’, which would be examined. The proposals should be viewed as changes to the developer contributions system, rather than simply the introduction of a new levy that would replace all other types of contribution. This blog provides an overview of the Levelling Up and Regeneration Bill’s Infrastructure Levy provisions and focuses on those aspects of IL more closely linked to development management. It also references the intended contents of the IL Regulations and associated policy and guidance, as announced by the Government alongside the Bill.   How will the IL relate to other developer contributions? Land value capture plus: s106 agreements retained IL would (largely but not wholly) replace CIL and the financial contributions secured via s106, including all types of affordable housing contributions. Notwithstanding the introduction of a levy designed to encapsulate key contributions, there would be “a process to “require” developers to deliver some forms of infrastructure that are integral to the design and delivery of a site”. The examples of integral infrastructure given are flood risk mitigation and a play area; so, the inference is that this would not be occasional use of s106, but rather that on-site scheme specific mitigation might be sought by local planning authorities (LPAs) via s106 or condition with some regularity. Essentially, the Government would like contributions to make development acceptable that would otherwise be unacceptable and capture some of the consequential uplift in land value. Furthermore, a notable contribution will be ‘biodiversity net gain’ (BNG), most likely from the end of 2023, where not already secured by a planning condition. Therefore, in London, for most major projects, there would be planning contributions via s106 agreement, as well as Mayoral CIL and London Borough IL or Development Corporation IL, in addition to the planning condition requirements – some of which could be non-financial contributions. Elsewhere in England there would continue to be two types of contributions, until such time as other areas are permitted to charge strategic CIL.   Controlling whether mitigation by condition or legal agreement is a reason for approval The Explanatory notes to the Bill say that the legislation: “[…] will also allow the Secretary of State to regulate on how IL will relate to planning obligations, to secure funding from developers to deliver mitigations to the impact of development in the area where such development occurs. The Bill seeks to control the use of conditions, section 106 agreements and section 278 agreements to provide infrastructure directly and to control whether that provision could be considered a reason for granting planning permission. This is presumably to allow local planning authorities to push mitigation measures towards IL – albeit that funding secured by IL would not necessarily be ringfenced. Clause 204ZI’s wording is broad and how it translates into the IL Regulations will be interesting: (2) IL regulations may include provision about the exercise of any other power relating to planning or development [in addition to the CIL Regulations, and sections 70, 106 and 278 of the Town and Country Planning Act 1990] A balance would need to be found between these proposed provisions to control the scope of IL mitigation and the Government’s (stated yet unclear) desire to use s106 agreements less, while requiring s106 agreements and condition in certain circumstances. In addition to or alongside the new infrastructure delivery strategies, the IL Regulations could require authorities to write a list of infrastructure to be funded by IL. According to the Bill’s explanatory notes, items not included on that list would be: “infrastructure that developers should expect to fund and provide outside of IL”. This sounds like a return to the CIL Regulations 123 lists as the Bill also provides “for setting out the circumstances in which IL can be spent on projects which are not listed”. This would probably lead to further items being secured by s106 agreement or condition.   The charging schedule and calculation of the chargeable amount  Setting the rates and thresholds The Bill provides the Framework for the new Levy; Regulations are to determine how, when and on what basis it would be charged. The viability of schemes would be at the heart of rate setting. Clause 204A (2) of the Planning Act 2008 says: “In making the regulations, the Secretary of State must aim to ensure that the overall purpose of IL is to ensure that costs incurred in supporting the development of an area and in achieving any purpose specified under section 204N(5) (non-infrastructure items) can be funded (wholly or partly) by owners or developers of land in a way that does not make development of the area economically unviable”. As now, the charging authority would be able to set the levy rate and there could be more than one rate across an area. The rate would be a percentage of a site’s GDV, rather than on floorspace as with the current CIL. The authority must take into account certain factors when setting IL rates. These include viability changes caused by the introduction of IL, IL revenues that would be generated, any infrastructure delivery strategy and other matters that affect land value, including planning permissions and policies. They would not need to consider the actual and expected costs of delivering infrastructure, as they would with CIL. Factors that could be taken into account when setting the rates and thresholds include consideration of administrative costs, actual and expected costs of non-infrastructure items that would mitigate development, and potential sources of funding for those items and evidence in statutory documents. According to the Government: “The effect of this, compared to CIL, is to shift the focus of rate setting towards the capture of land value uplift, with the two chief constraints being the extent to which land value has increased and the viability of development in the area”. The IL Regulations would provide that a charging schedule could also set out rate changes that would occur over time, following specified events taking place. In addition, IL Regulations would either permit or require the charging authority to set a threshold below which IL would not be charged - or it would be charged at a reduced rate. The threshold would probably be set in value per square metre and the Bill’s explanatory notes indicate that there may be different thresholds in one charging schedule. The Government suggests that, when setting a threshold, the charging authority takes into account items like build costs, other costs and the existing use value of the land. Thresholds might perhaps be able to factor in contaminated land, by raising thresholds where there is a given level of site contamination?    Examination of Charging schedules The processes for drafting, examining and bringing an IL charging schedule into effect are to be broadly similar to that of a CIL schedule. The Secretary of State can direct a review of the charging schedule and appoint someone to do it if the authority does not. The legislation would also allow the Secretary of State to require rates or thresholds to be changed with immediate effect (e.g. to respond to a dramatic change in the economy).   Factoring in affordable housing There is intended to be a mechanism for ensuring that affordable housing is not squeezed out by other forms of infrastructure. When setting rates and thresholds, the authority must consider the “desirability of ensuring” that developer funded affordable housing and affordable housing contributions are maintained at a level that is equal to or exceeds the level of such housing and funding that had been provided over an earlier period of the same length. This will be measured in accordance with the IL Regulations. The ‘Further information’ policy paper produced by the Government says: “It is intended that a substantial portion of the value captured through IL will be delivered via on site affordable housing”. Furthermore, the Government says that it will: “Introduce a new ‘right to require’ to remove the role of negotiation in determining levels of onsite affordable housing. This rebalances the inequality between developers and local authorities by allowing local authorities to determine the portion of the levy they receive in-kind as onsite affordable homes”. Hopefully this process will benefit from review and appeal procedures.   Calculation and exemptions IL is expected to be based on final GDV, although the percentage rate of IL would be fixed on the day planning permission is first permitted – which, as with CIL, is not necessarily the date the development is granted. Given that IL applies to final development value, any amount payable on completion of the development or phase is deliberately a variable too; the Government intends charging authorities to benefit from an uplift in the market during construction. Equally, the variable nature of the charge means that the IL liability would drop if the value of the scheme dropped, without a need to renegotiate contributions. This ought to be a big shift from CIL. However, as many LPAs reissue CIL liability notices as commencement notices are submitted, leading to a stressful eleventh-hour debate on the CIL liability, and therefore scheme viability, this might not be such a huge leap. Given the uncertainty surrounding final liability, the IL Regulations will require a charging authority to provide formal IL estimates. It would be very helpful if these estimates could be subject of review and appeal, because a developer might not commence a development if there was a significant difference of opinion on agreed inputs.   IL liability where developments do not create floorspace The intention that IL will be charged based on the final gross development value of development, rather than the floorspace of development when planning permission is granted, could mean developments not currently CIL liable would be IL liable. The Government has confirmed that changes of use would be subject to IL. Deductions arisings from the thresholds At present, CIL exemptions mean that certain developments do not pay CIL at all, but if a development does have to pay, it pays the full amount. But when calculating the chargeable amount of IL, the scheme’s GDV that is below the stipulated minimum threshold would be deducted, no matter how big the scheme or what is proposed. The Government anticipates that the threshold would be set out on a value per square metre basis. Right to require and the in-kind routeway As noted above, the collecting authority would have a ‘right to require’ on site affordable housing and there would be an ‘in-kind routeway’ that certain development (presumably of a given scale) would be able to use to provide infrastructure in-kind. This is to be set up via the broad powers in clause 204Z. Exemptions and relief Clause 204Z also allows the IL Regulations to include exemptions and relief. The Government has referred to exemptions for residential extensions and annexes. Charitable relief would continue to be available. Given the promotion of self-build schemes elsewhere in the Bill, it seems likely self-builders will continue to benefit from relief.   Payment The arrangements Provisions relating to payment are planned to be very similar to those in the CIL Regulations, allowing for instalments and various types of payment in-kind. Payment on account would be permissible too – and it is critical that the IL Regulations get the extent to which this can be used, correct: “Payment by instalment or on account would allow for earlier payments. This would be used to allow the charging authority to require payments prior to the completion/occupation of the phase/development. This would mean that payment could be enforced […] at a point when the developer was in control of the site, rather than at a point when it has been sold on, for instance to a homeowner. Early payment may also be used to support the early delivery of infrastructure. However, as this would also increase costs for developers, and may risk overpayments, restrictions may be placed on the use of such an approach.” This means it won’t be as simple as a final sales value to a homeowner or other purchaser being submitted; there might be a need for a valuation on almost all schemes. Penalties The maximum penalties for all types of breach could be increased significantly, apparently to compensate for the ‘amalgamating’ of s106 and CIL. The maximum surcharge or penalty would not be permitted to exceed the higher of 40% of the IL amount and £50,000. There is surely an argument for not applying penalties or reducing them during pilot phases or even for the first year that IL is charged. Who would the charging authorities be? Charging authorities for IL would be the LPA, Homes England (where it is the LPA) or Mayoral Development Corporations, as now. The proposed New Town Development Corporations are to be given Mayoral Development Corporation powers, so they would be able to charge IL too. (See Ed Clarke's blog on the regeneration elements of the Bill, including the proposed Urban Development Corporations.) Charging authorities for CIL would be the Mayor of London and Welsh LPAs. The Bill allows for the IL Regulations to change the charging authority to a county council, a district or a metropolitan district council, or a London borough council; the explanatory notes to the Bill suggest that this for reasons of scale and efficiency in certain circumstances.   Infrastructure delivery strategies Local authorities would be required to publish infrastructure delivery strategies for the high-level priorities for spending of the levy. The strategy would be subject to independent examination alongside a charging schedule or local plan, and should be kept up-to-date. Therefore, it could not be produced and published as quickly as the current Infrastructure Funding Statements, which serve a different function. The Government says: “IL must be spent to support the development of an area by funding the provision, improvement, replacement, operation or maintenance of infrastructure, or for any other purpose specified in regulations”. The Bill includes a non-exhaustive list of infrastructure types and, if enacted, would permit the IL Regulations to change the items on that list and to stipulate the minimum spend on certain types of infrastructure and when funds can be spent on non-infrastructure items. Neighbourhood plans would be able to set out any infrastructure and affordable housing requirements, in addition to those in local plans (see Tom Davies' blog on the plan-making elements of the Bill). Given that IL would seek to encompass most types of infrastructure (except expressly that which is integral to the design of the development – e.g. play areas), it is not surprising that consultation with infrastructure providers when preparing development plans and when setting the levy is encouraged. If providers were consulted, there would be a statutory requirement to reply. At present, long IL shopping lists can be presented to LPAs by infrastructure providers and others who consider certain facilities or contributions should be secured via s106 agreement in order for a development to be acceptable. In future, balancing such requests against ensuring that the rate is set at a level at which developments would be viable would be a challenge. There is a strong risk that anything that might be considered potentially integral to scheme design would be removed from the potential list of infrastructure items to receive funding and requested via s106 in due course, which would still be in accordance with the IL Regulations. A payment towards one playspace across several chargeable developments but one planning permission might still be considered “integral”. Some of the projects looking for funding ought to seek/be provided with funding from elsewhere. There is a recent history of NHS trusts seeking payments that had not been anticipated by the LPA. Several late requests for healthcare payments were the subject of an unsuccessful challenge to the grant of planning permission recently. Addressing the rationale or otherwise for such funding upfront is to be welcomed. Borrowing against IL As expected, there are also powers to permit IL to be used to repay borrowing against future IL receipts.   A learning curve based on experience? The intention of the gradual roll out of IL, according to the Bill’s explanatory notes, is “so that IL regulations can be informed by how IL works in practice”. It would appear to be a pilot rather than a gradual roll out, but the pilot would need to be based on regulations; it suggests that DLUHC is anticipating several amendments to the Regulations based on user experience. This could be viewed as concerning, particularly for developers operating in a pilot area. Furthermore, given that IL is based on development value, it would be once payments are due that the problems arise. If a planning permission lasts for at least three years and can be completed on an indefinite timescale once implemented (for the moment), it may take some time for perverse outcomes that require correction to come to light. Even on a swift build out on a smaller site, experiences would probably take at least a year to start to emerge, which explains the long lead in time anticipated for IL by the Government. More positively, a gradual roll out is, of course, indication that the Government wants IL to succeed, acknowledges the teething (and adolescent) problems of CIL, and will be ready to respond as issues arise. With this in mind, and in the knowledge that IL would take some time to come forward, here are our initial thoughts on some key CIL-related asks/questions of the IL Regulations:   There needs to be a clear understanding of when the calculation should be made and what constitutes a completed development – the interface with the developer completion notices also proposed in the Bill must be clear. The LPA might not want to say a scheme is complete because certain conditions have not been complied with – would that also be an easy way of arguing that IL is not yet due? IL should permit the introduction of sub-phases post commencement, to reflect changes to how a site is coming forward and to avoid confusion arising where a chargeable development is partially built, and its value not certain, but also partially occupied. Sites granted planning permission before IL is introduced, which are then subject to a fresh planning permission for a broadly similar development, should remain in-CIL (or out of CIL) while the first permission is still extant. The intention being to avoid complicated comparisons of viability between the pre-IL vs IL scheme when the focus should be on the differences between the two schemes. Other amendment provisions should be taken into account when designing IL; section 73, section 73B and section 96A (not currently dealt with by CIL so some LPAs unreasonably refuse to entertain a section 96A application that would alter floorspace). IL Regulations must explain clearly who notices must be served on and all parties receiving notices must have formally agreed to receive such notices; e.g. they should not be sent to the agent without first confirming this is correct. Key inputs to Gross Development Value should be formally agreed prior to development commencing. This is so that the inputs change only to reflect changes to the market post-commencement and not due to differences in opinion between the collecting authority and the developer, for example on precise floorspace figures. This is particularly important in respect of the right to require affordable housing on site. However, where the site is sold post permission, there must be scope to revisit right to require and associated assumptions, particularly where the purchaser is a registered provider or built to rent provider.   Next Steps In an open briefing to the planning and development sector, on 12 May, the Chief Planner said that it is expected that the Bill will be enacted at the end of 2022 or the start of 2023. One would expect the IL Regulations and associated guidance to be drafted and consulted upon alongside that process and adapted as the Bill is amended. Perhaps pilot authorities could therefore be charging IL this time next year? DLUHC’s open approach to engagement and consultation is to be welcomed and it is essential that the sector responds proactively so that shared insight produces a workable Infrastructure Levy system.