We Need Some Flex On CIL

Miles Gibson rightly spotted, in his good CBRE piece Community Infrastructure Levy – ten years old, but COVID-19 is its biggest test (7 April 2020), that the Community Infrastructure Levy Regulations came into force just over ten years ago, on 6 April 2010. (And who better to point it out, given that until 2011 Miles led on CIL at the Department of Communities and Local Government?).

Of course, after the regulations were brought into force, there was then a pause caused by the 6 May 2010 general election. Would the incoming coalition government scrap, or at least amend and rebadge, the system? In the end the system survived and, according to wikipedia at least, the London Borough of Redbridge was the first to adopt a CIL charging schedule, on 1 January 2012.

So CIL didn’t live through the global financial crisis, or previous recessions, as we have done. I have written before about the inherent inflexibility of the mechanism but, as Miles acknowledges in his piece, the current economic conditions are going to prove the big test for the levy.

He says “CIL’s inflexibility could prove its downfall if the forthcoming downturn is anything other than a short sharp shock. COVID-19 has created the biggest test which CIL has yet faced. If the downturn is lengthy, local authorities may need to hurriedly cut CIL rates to help return development to viability. Or, press the pause button on introducing CIL altogether.”

This may all be so, but there are also other, more nuanced steps which charging authorities could also be taking, with the encouragement of MHCLG, one would hope. For instance:

⁃ The switching on, within charging authorities, of the ability to apply for exceptional circumstances relief – and if there isn’t sufficient movement on this I would argue for its automatic national application by way of a change to the regulations. Whilst ECR is a cumbersome process, and there are state aid considerations to be borne in mind, if these aren’t “exceptional circumstances” what are? And I suspect that the application of ECR will be more palatable than the reintroduction of section 106BA, which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability.

⁃ The introduction of instalment schemes for payment (currently discretionary) and the review of existing instalment schemes to push back timescales.

I was interested to see, via an update by Ashfords (Covid-19: Mitigating the impact of Community Infrastructure Levy (“CIL”) on stalled developments, 7 April 2020) East Suffolk Council’s pragmatic response to current developer cashflow problems, basically stepping outside the procedural tramlines of the Regulations. In its statement, Coronavirus: Actions for CIL, it sets out a series of commitments, including these:

Where development has already commenced, CIL demand notices will shortly be re-issued to allow for a 3 month extension to the next instalment due date and to subsequent outstanding instalments. This position will be reviewed towards the end of June and any further extension to instalment payment periods will be communicated. It will take time for notices to be prepared and issued, but this work will be prioritised.

An individual, case by case review of late payment interest and surcharges will be made and a pragmatic approach adopted to support customers in these circumstances.

CIL debt recovery will largely be paused for 3 months and will be reviewed towards the end of June 2020 with a view to extending this position if required.

Are there any examples of other charging authorities taking an equivalent stance? Clearly there are risks in such an approach and I would be cautious as to the extent that, for example, a funder with millions of pounds at stake, could rely on such a commitment. It is unfortunate that the Regulations are so inflexible as to lead to such sticking-plaster solutions.

Stepping back, unless authorities are now going to move very quickly to propose reduced charging rates and take positive steps in relation to instalment policies and ECR, wouldn’t a solution in current circumstances be for the Government to legislate so as to allow authorities, both in relation to existing permissions and permissions which have not yet been issued, either to (1) defer payment of CIL for a defined period or (2) allow an emergency discount of say 50% to be applied, conditional upon development being commenced within a defined period of time and then completed within a defined period (the period to be agreed with the authority having regard to its projected build programme and if the deadline is missed there would be clawback)? To reduce the extent that the authority is as a consequence unable to deliver essential infrastructure, the Government would need to make additional funding available, because after all the economic and social benefits of ensuring that development gets started again will be immense.

I don’t have the answers – I would welcome your much better ones (except “abolish CIL” – let’s be practical). However, I do know that (1) CIL is a massive, inflexible, cash drain for any development early in its implementation and (2) some additional flexibility would surely reduce the risk that many development projects will remain on hold even once normal life starts to return around us all.

Simon Ricketts, 10 April 2020

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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