How CIL operates
CIL is one method to help fund the delivery of infrastructure to support the planned growth identified within the adopted Local Plan 2026.
It operates alongside the much restricted, but continued use of section 106 planning obligations that can continue to be used to secure site-specific mitigation providing they meet the statutory CIL Regulation 122 Tests, and where relevant the limitations of the CIL Regulation 123 pooling restriction.
Other methods can also be used to secure mitigation that have no limitations e.g. s278 Highway agreements.
Planning Conditions attached to a grant of planning permission can also continue to be used where these are the most appropriate method to secure the delivery of infrastructure requirements under adopted policy provided for directly by the applicant either on-site or off-site as identified during the planning process.
In circumstances where CIL and or planning conditions are the only requirements, CIL will not hold up the determination of a planning application or subsequent issue of a Decision Notice.
The operation of CIL is very different to the operation of section 106 planning obligations. CIL is a mandatory charge on the development. Any development that is identified as CIL liable development under the framework of an adopted CIL Charging Schedule will automatically trigger the liability to pay CIL.
It is not just development by companies and the development sector to which CIL may become liable. Subject to scale of floor space, the following development proposals will also be liable to pay CIL:
- Permitted Development works (householder and other)
- Householder development (extension planning applications)
- Self-build dwellings
- Residential annexes
Small-scale proposals that generate a gross internal area of new build that is less than 100sqm may become exempt from CIL liability if they satisfy the requirements of Regulation 42 to be defined as ‘minor development’ for CIL purposes. This does not apply to new dwellings as these are CIL liable no matter what the GIA.
The CIL Regulations make provision for householder extensions (that are not CIL minor development) that are 100sqm GIA or more, residential annexes and self-build dwellings (no matter what their size) to potentially be exempt from the liability to pay CIL. This is not an automatic exemption and must be applied for.
As a mandatory charge on development, a failure to pay CIL could lead to:
- locally imposed financial surcharges and/or interest being applied
- the issue of a Stop Notice to prevent further development until the CIL Payment is made
- asset seizure
- a prison term
Continued use of section 106 obligations
Under CIL Regulation 122, a planning obligation may only constitute a reason for granting planning permission for development if the obligation is:
- necessary to make the development acceptable in planning terms
- directly related to the development
- fairly and reasonably related in scale and kind to the development
These are further controlled by the CIL Regulation 123 pooling restrictions. Affordable Housing falls completely outside the scope of pooling.
In the event that section 106 obligations, or other legal methods e.g. highways agreements under s278 of the Highways Act 1980 are a necessary requirement, these will still need to be secured in advance of the release of a Grant of planning permission. For this reason early engagement in advance of submission of a development proposal application is necessary to identify as many of the requirements as possible in advance.
The Council’s Validation Checklist now requires the submission of an ‘Infrastructure Requirements Statement’ for relevant development proposals and the validation of these will be held up without it. For more information on this please see the Checklists for Planning Applications webpage.
Use of section 278 agreements under the highways act 1980 (as amended)
In circumstances where infrastructure mitigation or the delivery of works is required on the existing highway network, the Council as Local Highway Authority has the ability to secure the delivery of such and/or the financial contributions towards such under a s278 highways agreement. These agreements are not subject to a pooling restriction.