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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 in 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.  

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CIL-ing out? Deferred payments for struggling SMEs but no wider relief
Update 22.07.20: The Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 are now in force  Proposed amendments to the Community Infrastructure Levy regulations have been laid before Parliament. Once in force, the regulations are intended to go some way to addressing concerns regarding developers’ ability to pay CIL during the pandemic and over the coming year - but only for certain smaller-scale developers and where there are already signs of financial difficulty linked to the coronavirus. Background Some had hoped that the coronavirus-related amendments to the CIL Regulations would apply to all kinds of developer and might include delaying when CIL payments are due and suspending demands for any pending payments, but it soon became apparent that this would not be the case. In May, the Government announced that the CIL Regulations would be temporarily amended to provide flexibility for SMEs with a turnover of less than £45 million and produced interim guidance. New draft guidance also considers what is meant by turnover. Guidance suggesting alternative options for authorities that might benefit other developers was published and has been updated to reflect the draft Regulations. According to the Communities Secretary, the emphasis on SME developers rather than all developers is to provide them with “a bit of breathing space in the weeks and months ahead, which is a critical lesson learnt from the last downturn in the market”. The draft Explanatory Memorandum to the draft regulations also explains that it is intended to help SME developers with short-term cash flow problems resulting from the coronavirus outbreak. The requirement to show financial difficulty was not announced by the Government in May. It is onerous and open to interpretation, but arguably it has made the amendments a more even-handed (and less attractive) proposition for all developers. The regulations, as laid The draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 were laid before Parliament on the 30 June. They are anticipated to come into force during the summer and are proposed to remain in force until 31 July 2021. The amended regulations give additional discretionary powers to collecting authority to defer a CIL payment by up to a maximum of 6 months and to disapply late payment interest and surcharge payments. New Reg. 72A details the process for seeking to defer payments (‘deferral request’), which is only available to a developer that: Has an annual turnover less than £45 million; Has been served with a demand notice under Reg. 69; Is required to pay the charge within the period from when the Regulations come in force to 31 July 2021 (which may include payments that became due before this time and remain outstanding); and “Is experiencing financial difficulty for reasons connected to the effects of Coronavirus resulting in difficulty paying that amount”. This must be evidenced (discussed below). The Government has published draft step by step guidance which will be updated once the new regulations come in to force. The draft guidance explains what turnover is, for the purpose of checking eligibility: “If it is a sole enterprise it is the turnover of the applicant only, as shown in the latest set of accounts. For applicants acting as part of a group, that have partners or linked enterprises, the turnover assessment should take the latest turnover of the applicant, as shown in their accounts, together with the turnover of any linked enterprises, any partners of any linked enterprises, any enterprises linked to any of the applicant’s partners and any enterprise linked to the applicant’s linked companies”. The flowchart below is Figure 1 in the draft guidance; the numbers in the flowchart refer to stages described in the draft guidance. Key matters to note are as follows: Timescales: All deferral requests must be submitted no more than 14 days before any payment is due, when it is due, or as soon as practicable after. The collecting authority should consider the application as quickly as possible and within 40 days. If a deferral is granted the collecting authority must issue a revised demand notice as soon as practicable. The collecting authority is permitted to signal its intent to grant deferral, prior to a decision being made. The deferral begins from the date of the request is made not the date the deferral is granted: As aforementioned, the deferral can only be for a maximum 6-month extension. This is very much a discretionary process: The charging authority must consider it appropriate to defer the payment and there is no appeal process should the authority refuse a request. In London, this means the Mayor and the local charging authority will separately consider the application as it relates to the Mayoral CIL and the local charging schedule, respectively. It seems likely that TfL would make this decision as they lead on Mayoral CIL. Surcharges and interest do not apply when the authority is considering a request: New Reg. 72B protects developers from having a late payment charge imposed (under Reg. 85) and from being required to pay/accrue interest (Reg. 86) normally required when a request is made. Even if a deferral is refused, the developer still has a further 7 days (from refusal) to make the payment without any surcharge or interest being applied/accrued (assuming none were accrued before). Payments can be deferred more than once: but only where the earlier deferred payment date now sought to be deferred again falls before 31 July 2021; the final deferral request on a development or phase may grant a deferred payment date beyond 31 July 2021. The authority may refuse further deferral requests. Where a deferral request is granted, new Reg. 72B also gives collecting authorities the discretion to credit interest already charged to a developer since 21 March 2020 (the date of lockdown). Interest requests cannot be made if a deferral request is refused. The Mayor must agree to an interest credit on Mayoral CIL. In terms of documents required for a deferral request, as a minimum, developers should submit the relevant demand notice and (where there is likely to be any doubt) evidence to demonstrate the company’s annual turnover is below £45 million, and evidence of financial difficulty related to coronavirus. The collecting authority can also request additional information from the developer to demonstrate its turnover and its financial difficulties. These requests must be responded to within 14 days or the authority may refuse the request. Developers must therefore be prepared to be open with their financial predicament to the collecting authority’s satisfaction and engaging with them prior to submitting a request is advised. Collecting authorities are expected to be positive in their approach. Prior to the amendments coming into force and for developers not benefiting from the amendments For developers who cannot benefit from the new regulations there are some existing flexibilities around the pursuit of payments by collecting authorities, but developers should assume that they must follow and comply all CIL-related requirements in order to avoid surcharges or the loss of exemptions or reliefs. The interim guidance suggests that until the amending regulations take effect later this summer, collecting authorities should note the draft legislation and use their discretion in considering what, if any, enforcement action is appropriate in respect of unpaid CIL liabilities. It also encourages CIL charging authorities to consider introducing an instalment policy (or amending an existing one). Developers of developments not commenced, or phases of development not commenced, can benefit from any new instalment policies (or amendments to an existing instalment policy). There are also discretions around issuing of CIL stop notices (requiring development to stop where CIL has not be paid) and issuing surcharges to people who have not paid CIL. However, late payment interest accrues automatically. As the draft Explanatory Memorandum says: “The [May 2020] guidance was clear that the terms of an instalment policy would only apply to development that commences while that policy is in effect. A charging authority would not be able to apply a new instalment policy to development that had already commenced. The guidance also made clear that while a collecting authority had discretion over whether to start enforcement proceedings for late CIL payments, and could choose not to charge a surcharge for late payments (see regulation 85 of the 2010 Regulations), they are required to charge late payment interest under regulation 87 of the 2010 Regulations”. S106 planning obligations The Government is not proposing any legislation to allow for applications to amend s106 agreements. The draft CIL guidance considers deeds of variation to be a sufficient mechanism to agree amendments to the timing of payments or deliverables. It encourages LPAs “to consider whether it would be appropriate to allow the developer to defer delivery. Deferral periods could be time-limited, or linked to the government’s wider legislative approach and the lifting of CIL easements (although in this case we would encourage the use of a back-stop date)”. There would be no right of appeal if the LPA does not agree to change the timescales in the s106 agreement. There is no encouragement to review the obligations within s106 agreements, but LPAs are asked to take a pragmatic and proportionate approach to the enforcement of section 106 planning obligations during this period. Reviewing the scope and nature of obligations might be considered premature (particularly when the ability to conduct viability appraisals to understand the valuation implications of the crisis is so difficult); this might follow if the economy does not recover swiftly and the market does not spring back into shape. Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020  

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