CIL frequently asked questions

Set out below are answers to some frequently asked questions about CIL. It should be noted that these should be read in conjunction with the Government’s CIL Regulations (as amended), as these provide more detail on specific points that need to be taken into consideration. Please be aware that these were amended in September 2019 and that CIL Liability Notices issued prior to 1 September 2019 will need to consider the previous version of the Regulations. The Regulations are available from the Community Infrastructure Levy webpage.

What is the Community Infrastructure Levy (CIL)?

The Community Infrastructure Levy is a planning charge, introduced by the Government through the Planning Act 2008 to provide a fair and transparent means for ensuring that development contributes to the cost of the infrastructure it will rely upon, such as schools and roads. The levy applies to most forms of residential development in the borough and charges are based on the size and type of new floorspace.

When does it come into effect?

The Borough Council adopted CIL at the meeting of Full Council on 22 March 2018 and it came into effect for applications determined after 25 June 2018.

Planning permissions granted before that time will not be liable to pay CIL, including those where the principle of development was established through an outline consent. However, if the outline planning permission is granted after 25 June 2018, followed by the approval of reserved matters / phases at a later date, the approval of reserved matters / phases does trigger a new liability to pay CIL.

What is infrastructure?

Infrastructure which can be funded by the levy includes schools, transport, flood defences, hospitals, community facilities and other health and social care facilities. This definition allows the levy to be used to fund a very broad range of facilities such as play areas, parks and cultural and sports facilities and gives communities flexibility to choose what infrastructure they need. The Levy can be spent on 'the provision, improvement, replacement, operation or maintenance of infrastructure'.

The projects on which the Borough Council is proposing to spend CIL are set out in the Adopted R123 list, which also sets out key pieces of infrastructure where CIL will specifically not be spent.

What development is liable for CIL?

The CIL will apply to ‘chargeable development’. This is defined as:

• All new buildings, but excluding building into which people do not usually or only occasionally go (e.g. only to inspect machinery or structures such as electricity pylons or substations).
• Residential development delivering 100 square meters or more of additional gross internal floor space
• The creation of two or more new build dwellings (not through conversion/sub-division) even if the gross internal floorspace is less than 100 square metres
• Some developments not requiring planning permission (permitted development) will also be liable if they do not fall into the exemption criteria.

Development may result in a nil chare for CIL if it:

• Involves only change of use, conversion or subdivision of, or creation of mezzanine floors within a building which has been in lawful use for at least six months in the 3 years prior to the development being permitted and does not create any new build floorspace; or
• Is for a building into which people do not normally go, or go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery; or
• Is for a structure which is not a building, such as pylons or wind turbines; or
• Is permitted by a ‘general consent’ (including permitted development) commenced before 6th April 2013; or
• Is for social housing and a claim for social housing relief is made, has been accepted by the Council and all the requirements in the Regulations have been satisfied (with account taken of the additional provisions in the Discretionary Social Housing Relief Policy); or
• Is for a use or area which benefits from a zero or nil charge (£0/m2) set out in the CIL Charging Schedule; or
• Is eligible for self-build exemption and the relevant claim form has been submitted, has been accepted and all the requirements in the Regulations have been satisfied; or
• Is for a use which benefits from a zero or nil charge (£0/m2) as set out in a CIL Charging Schedule, these include care homes/extra care/sheltered housing, single dwellings and wholly flatted schemes (excluding flats which are part of the housing mix on a larger development site). For more detail, please see BDBC adopted CIL rates; or
• Development which has been granted planning permission prior to the CIL Charging Schedule being adopted (25 June 2018).

Is there any relief from CIL?

In accordance with the Regulations the following development may receive relief from CIL:

• Social housing development and those forms of affordable housing excluded via the Council’s Discretionary Relief Policy
• Self-build development
• Self-build residential annex or extension
• Minor development with a gross internal area which is less than 100 square metres is automatically exempt from the CIL, provided it isn't for the development of a whole dwelling.
• Developments of less than 100 square metres are CIL liable if the development will result in a whole dwelling (this can include residential annexes).
• All other exemptions (social housing and self-build) are not automatic and have to be applied for before commencement. They cannot be applied for retrospectively.
• If you are seeking a CIL credit for building(s) (in current lawful use) to be demolished please submit a scaled plan of all of the floor space you would like to be taken into consideration.
• Floor space subject to demolition or resulting from change of use can only be deducted where it has been in continuous lawful use for at least six months in the last 3 years prior to a development being permitted. It will be for the applicant or their agent to demonstrate lawful use by providing more than one piece of appropriate evidence for example:
• Time-stamped photographs showing the building in the use claimed;
• Sworn statements made by people who can confirm the use claimed, witnessed by a solicitor;
• Utility or other bills relating to the use claimed.

If there is not sufficient evidence to prove the building(s) are lawful in-use buildings, the floor space may not be deducted from the CIL charge.

Does CIL affect the Validation Process?

CIL is liable when a planning application is determined. Accordingly, to validate an application for chargeable development, the applicant must include the CIL Planning Application Additional Information Form (PAAIR Form) with their application. This and all other relevant forms can be downloaded from the Planning Portal. The exception to this is for Outline planning applications where the CIL form is completed on submission of Reserved Matters.

Will a development be liable to pay CIL if there was an outline planning permission before 25 June 2018, but the approval of reserved matters / phases is made on or after 25 June 2018?

No. If outline planning permission is granted before 25 June 2018, but the approval of reserved matters / phases is made on or after 25 June 2018, the approval of reserved matters / phases does not trigger a liability to pay CIL.

However, if the outline planning permission is granted on or after 25 June 2018, followed by the approval of reserved matters / phases at a later date, the approval of reserved matters / phases does trigger a new liability to pay CIL.

Will a development be liable to pay CIL if there was a full planning permission before 25 June, but the approval of pre-commencement conditions is made on or after 25 June 2018?

No, if full planning permission is granted before 25 June 2018, but the approval of pre-commencement conditions is made on or after 25 June 2018, the approval of pre-commencement conditions will not trigger a liability to pay CIL.

Will a development be liable to pay CIL if there was a refusal of planning permission before 25 June 2018, but an approval of planning permission is made on or after 25 June 2018?

Yes. If planning permission was refused before 25 June 2018, but a grant of planning permission is made on appeal on or after 25 June 2018, the development granted planning permission on appeal is liable to pay CIL.

Will a development be liable to pay CIL if there was a planning permission before 25 June 2018, but an approval of a S73 application to vary or remove conditions of that planning permission is made on or after 25 June 2018?

Yes. If full planning permission is granted before 25 June 2018, but an approval of a S73 application to remove or vary conditions is made on or after 25 June 2018, the approval does trigger a liability to pay CIL because it results in a new planning permission.

However, the CIL (Amendment) Regulations 2012 confirm that although a new CIL liability is triggered, the new additional chargeable amount is equal only to the net increase in the chargeable amount arising from the original planning permission, so as to avoid double counting.

I have a permission granted before CIL was introduced, but now wish to apply for a new planning permission. Will this be CIL liable?

If a revised full application is approved, then CIL will be applied to that development irrespective of the fact that it had previously been granted planning permission before CIL came into effect.

If an existing planning permission (approved prior to the implementation of CIL) is revised via a section 73 application, then CIL will only be charged against any increase in floorspace being proposed – if the section 73 application does not propose an increase in floorspace to that in the original permission, then no CIL will be charged.

Who is liable to pay the levy?

The responsibility to pay the levy rests with the ownership of land on which the liable development will be situated. Although liability rests with the landowner, the regulations recognise that others involved in a development may wish to pay. To allow this, anyone can come forward and assume liability for the development.

How is the levy paid?

The charge is levied in £ / m² on the net additional increase in floorspace. It will normally be collected as a monetary payment, although there is also provision for it to be paid by transfer of land or asset to the local authority if certain criteria are met (see payments in kind question below).

How is the floor area measured?

CIL liability is based on the ‘chargeable area’ which is calculated using the formulas set out Regulation 40 of the CIL Regulations. These require the measurement of the Gross Internal Area (GIA) floorspace of the proposed CIL liable development and the GIA floorspace of any existing ‘in-use’ building which is to be demolished.

The definition of GIA for the purposes of calculating CIL is not specified in the CIL Regulations, but the generally accepted method of calculation of GIA is set out in the RICS Code of Measuring Practice 6th Edition (2007) (the RICS Code). Details of what is included are provided in Appendix One to this note.

Is VAT applied to CIL charge?

The charge levied in £ / m² on the net additional increase in floorspace for the CIL is exempt from VAT.

Can I pay CIL by instalments?

Ordinarily, the CIL is due within 60 days of works commencement of development. Applicants should inform the council when they have commenced development, failure to do so could result in enforcement issues or penalties (please see how is the levy enforced question and the associated CIL Enforcement Policy). For developments where the CIL is £10,000 or greater, payment can be made by instalments. View BDBC Instalment Policy here.

Will the council accept payments in kind for CIL?

The Community Infrastructure Levy Regulations 2010 (as amended) allow for charging authorities to accept payment of CIL in the form of land or infrastructure in satisfaction of the whole or part of the CIL due in respect of a chargeable development. In certain exceptional circumstances you may be able to pay a part of or the entire CIL amount in the form of land. In accordance with Regulation 73 and 73A of the CIL Regulations (as amended), the council may accept one or more infrastructure / and or land payments in satisfaction of the whole or part of the CIL due in respect of a chargeable development. These must meet specific conditions as set out in the council’s Payment in Kind Policy, which includes a formal valuation of the item or land in question.

If you are interested in paying CIL in this way, you should discuss this possibility with the council as soon as possible, with acceptance of payments in kind at the council’s discretion, with no mandatory obligation for the council to accept payments in kind.

Do any CIL receipts get passed to Town and Parish Councils?

Parish Councils will get a proportion of the CIL receipts raised from development in their Parish. If they have a Neighbourhood Plan in place, they will get 25% of the receipts and they will be expected to use these to deliver proposals in their plan, alongside other local projects which are important to the community. If so minded, they can return some of these receipts to higher authorities to enable mutually beneficial projects to proceed. Parishes that do not have a Neighbourhood Plan will get 15% of the receipts and this will be capped at an equivalent of £100 per dwelling per year.

Details of those area progressing or who have a Neighbourhood Plan in place can be viewed here.

In the non-Parished parts of Basingstoke Town, the Borough Council will ring-fence CIL receipts received and will use these to fund projects in conjunction with the Local Infrastructure Fund.

Will Section 106 agreements continue to exist after CIL?

Section 106 agreements are used to cover some of the cost of community infrastructure works that are required to make a development acceptable in planning terms. However, now CIL is adopted, such agreements cannot be used to fund the same items on a planning authority’s Regulation 123 List because these items are to be funded from CIL receipts. Section 106 agreements will only be used for site specific mitigation and affordable housing. Therefore, in areas that have adopted the CIL, the Section 106 burden that developers have to pay in future is likely to be smaller than in the past.

How will CIL spend be monitored?

To ensure that the levy is open and transparent, charging authorities must prepare short reports on the levy for the previous financial year which must be placed on their websites by 31 December each year. These reports will set out how much revenue from the levy has been received, what it has been spent on and how much is left. CIL spend will also be monitored through the councils Authority Monitoring Report (AMR), published annually, as well as set out in the Council’s Budget Strategy.

The council have published a Regulation 123 (R123) list, setting out the infrastructure that it intends to fund through CIL receipts. This is to ensure the authority does not spend CIL receipts and S106 obligations on the same piece of infrastructure, which may be contrary to the assumptions in the viability assessment that supports the CIL rates. There is no specific priority order for the infrastructure listed on the infrastructure list.

How will payment of the levy be enforced?

The levy’s charges are intended to be easily understood and easy to comply with. Most of those liable to pay the levy are expected to pay their liabilities without problem or delay. The council have an Enforcement Policy in place with a range of measures to ensure that payment is collected accordingly, with the need for developers informing the council when they have commenced development. Where there are problems in collecting the levy, charging authorities have the means to penalise late payment. In cases of persistent non-compliance the regulations also enable collecting authorities to consider more direct action such as the issuing of a CIL Stop Notice or applying to the courts for seizure of assets to pay the outstanding monies or for custodial sentences.

For further information on CIL guidance, please see visit the Community Infrastructure Levy (CIL) or www.gov.uk/guidance/community-infrastructure-levy webpage.

How does the Borough Council intend to spend CIL that has been collected?

The Borough Council has a process for spending CIL in line with the approach set out in a report to committee in early 2018. The principles are established in the Council’s Capital Strategy.

Appendix One – Definition of Gross Internal Floor Area

CIL liability is based on the "chargeable area" which is calculated using the formulas set out in Regulation 40 of the CIL Regulations 2010 (as amended). These require the measurement of the Gross Internal Area (GIA) floorspace of the proposed CIL liable development and the GIA floorspace of any existing ‘in-use’ ¹building which is to be demolished.

The definition of GIA for the purposes of calculating CIL is not specified in the CIL Regulations, but the generally accepted method of calculation of GIA is set out in the RICS Code of Measuring Practice 6th Edition (2007)(the RICS Code):

GIA is the area of a building measured to the internal face of the perimeter walls at each floor level and includes:

• Areas occupied by internal walls and partitions.
• Columns, piers, chimney breasts, stairwells, lift-wells, other internal projections, vertical ducts, and similar.
• Atria and entrance halls, with clear height above, measured at base level only.
• Internal open-sided balconies, walkways, and similar.
• Structural, raked or stepped floors are to be treated as a level floor measured horizontally.
• Horizontal floors, with permanent access, below structural, raked or stepped floors.
• Corridors of a permanent essential nature (for example fire corridors, smoke lobbies).
• Mezzanine floor areas with permanent access.
• Lift rooms, plant rooms, fuel stores, tank rooms, which are housed in a covered structure or a permanent nature, whether or not above the main roof level.
• Service accommodation such as toilets, toilet lobbies, bathrooms, showers, changing rooms, cleaners' rooms and similar.
• Projection rooms.
• Voids over stairwell and lift shafts on upper floors.
• Loading bays.
• Areas with a headroom of less than 1.5m.
• Pavement vaults.
• Garages/car ports.
• Conservatories.

The following are excluded from CIL liable floorspace:

• Perimeter wall thicknesses and external projections.
• External open-sided balconies, covered ways and fire escapes.
• Canopies.
• Voids over or under structural raked or stepped floors.
• Greenhouses, garden stores (sheds), fuel stores and the link, in residential properties.

For the purposes of calculating internal floorspace for CIL, and for the avoidance of doubt, the council will also include in the calculation of GIA:

• Garages.
• Car ports except for those which have no sides.
• Porches on dwelling houses.
• Conservatories.
• Basements, underground and covered car parking areas.

The following will not be counted as internal floorspace for the purposes of CIL:

• A pergola with no roofing material.
• Free-standing solar panels.

¹A building that has been in ‘lawful use’ for a continuous period of at least 6 months within the period of 3 years, ending on the day planning permission first permits the charge for development.