PAS have drawn up a checklist of questions to help those that are setting their CIL or going forward to examination, to make sure that they approach setting their CIL in accordance with the new statutory guidance issued in February 2014
The statutory guidance is issued under section 221 of the Planning Act 2008 and Charging Authorities must have regard to it. The checklist questions should help you to make sure that you have used all the relevant evidence in setting your CIL, and can produce it at examination.
Where 'para' is used below, it refers to the new statutory guidance (link above).
- Overarching questions 1- 10: what the examiner needs to establish
- Questions to ask yourself when setting your CIL rates that will help you in examination
- Infrastructure Evidence
- Viability Evidence
- Overarching evidence
- S106 and CIL relationship
1. Has the charging authority complied with the requirements set out in Part 11 of the Planning Act 2008 (as amended by the Localism Act) and the CIL Regulations? (para 2.2)
2. Is the charging authority's draft charging schedule supported by background documents containing appropriate available evidence? (para 2.2 & 22.214.171.124)
3. Has the charging authority provided evidence of an infrastructure aggregate funding gap that demonstrates the need to levy CIL? (para 2.2 and para. 126.96.36.199)
4. Is the proposed rate or rates informed by, and consistent with, the evidence on economic viability across the charging authority's area? (para 2.2, para 188.8.131.52)
5. Are the rates so complex, or based on strategic sites, where in addition to the area based broad test of viability some further site sampling of viability is required? (para 184.108.40.206), and has this sampling been undertaken?
6. Has the charging authority provided evidence that shows, and explains, that the proposed rate (or rates) would not threaten delivery of the relevant Plan as a whole (para 2.2 & para 220.127.116.11.) and have they explained how their proposed levy rate/s will contribute to the implementation of their plan and support development across their area? (para 18.104.22.168)
7. Has the charging authority provided evidence that shows that they have struck the appropriate balance between desirability of funding infrastructure through a CIL and the potential effects of imposing a CIL on their area? (Summary of Reg. 14 (1), para 2.2)
8. Does the authority have an up to date relevant (development) plan? And is the CIL consistent with it and the supporting infrastructure evidence? (para 2.2.1)?
9. Has the charging authority provided a draft Regulation 123 list, set out known site specific matters where s106 contributions will be sought, and provided evidence to show how much they have raised through S106 agreements in recent years?
10. Has the charging authority complied with the consultation and administration requirements set out in the Regulations?
11. Are you a two-tier authority? (guidance 22.214.171.124) If yes, have you:
- consulted with the county council?
- collaborated with the county on setting the rate?
12. Have you engaged (at an early stage) with local developers and others in the property industry? (paras126.96.36.199) Have you documented your engagement and any amendments you have made following engagement?
13. Is your charging schedule consistent with, and does it support the implementation of, up-to-date relevant plans? Can you explain how it will achieve that? Can you tell the story of your charging schedule and delivery of your plan? (para 2.2.1)
14. In identifying your CIL target, have you considered what additional infrastructure is needed in your area to support development and what other funding sources are available? (para.188.8.131.52) Is your target ‘informed' by a selection of infrastructure projects or types (drawn from the Infrastructure planning for the area) which are ‘candidates for CIL funding?
15. Is your information on infrastructure need directly related to the infrastructure assessment that underpins your plan? (para 184.108.40.206)
16. Is your infrastructure evidence, to prove your aggregate funding gap, directly linked to the delivery of your plan? (para 220.127.116.11)
17. Is your infrastructure evidence, to demonstrate your aggregate gap, directly related to your draft 123 list? (para18.104.22.168 & 22.214.171.124)
18. Is your Infrastructure evidence (if not tested as part of another examination) sufficient in order to demonstrate an aggregate funding gap? (para.126.96.36.199)
19. Does your evidence show that your rate/s would not threaten delivery of the relevant plan as a whole (NPPF 173, Guidance para 2.2, 188.8.131.52. & 2.6)
20. Have you summarised your economic viability evidence in a document that shows the potential effects of the proposed levy rate/s on the economic viability of development across your area? (para 184.108.40.206 & 220.127.116.11)
21. In developing your rate/s and schedule have you worked proactively with developers? (para. 2.2 & 2.6)
22. What have you previously achieved through s106? (para18.104.22.168 & 22.214.171.124)
- Overall per annum – financial and others
- Examples of s106 achieved per unit – financial
- In relation to your affordable housing and other targets ( 126.96.36.199)
23. Have you sampled an appropriate range of types of site that reflect the different types of site in your development plan? (para 188.8.131.52) Have you received assistance from local developers to do this? Remember your rate should be based on appropriate available evidence. (para 184.108.40.206)
24. If you are setting differential rates, has your fine grained sampling reflected the different sites in your plan and is it consistent with your plan making viability? (para 220.127.116.11)
25. Have you got strategic sites in your area? Have you viability tested this strategic site type? (para.18.104.22.168 & 22.214.171.124)
26. If you have set a differential rate by use, which does not need to be tied to the use classes order, or size have you justified this by a comparative assessment of viability? (para.126.96.36.199)
27. If you have set a zero rate is this supported by viability evidence? (para.188.8.131.52)
28. If you have differential rates are you satisfied with regard to State aid? (paras 184.108.40.206 & 2.7.7)
29. Have you set out what you intend to fund through section 106 and CIL, and how these will operate together? Have you considered the impact of these in conjunction with other costs (e.g. s278 Highways Act and planning conditions) and demonstrated that they will not threaten viability and the scale of development identified in the development plan?( NPPF 173, guidance 2.6, & 220.127.116.11)
30. Have you, and your consultant, used the methodology recommended in Viability testing for local plans (Harman Guidance): Advice for planning practitioners?
It is worth noting most examiners will use this guide.
31. Have you consulted on your PDCS (Regulation 15) for at least six weeks and, as good practice, have you published your draft infrastructure list and proposed policies for the scaling back of s106 agreements? (para 2.2.3)
32. Have you taken into account the responses you received from your PDCS and consulted on your DCS and appropriate available evidence for at least four weeks (preferably six weeks as good practice)? (reg 16 and 17 & para18.104.22.168)
33. If you have produced a statement of modifications have you published and distributed it, and given a period of four weeks from date of submission? (para.22.214.171.124 & Reg. 21)
34. Will your charging rate contribute positively towards, and not threaten delivery of the relevant (development) plan as a whole now and through the economic cycle? (para.2.2 &126.96.36.199)
- Have you undertaken sensitivity analysis to demonstrate that your rate/s are viable in a variety of different circumstances?
- If not, do you have another way of demonstrating that your rates will not threaten the delivery of your plan now and throughout the economic cycle?
35. Is there consistency between:
- the infrastructure required to deliver your plan.
- the infrastructure evidence to show your aggregate funding gap to demonstrate your need to develop a CIL (paras 188.8.131.52) and
- the content of your 123 list (para 184.108.40.206)
36. Have you shown and explained how your rates are consistent with and contribute towards the implementation of your relevant plan and support delivery across your area (paras.2.2,1, 220.127.116.11 and Reg.14)? i.e. provide evidence to demonstrate that your rate will not deter development and illustrate through your spending plans (draft 123 list) the positive contribution to growth in your area that can be achieved by your anticipated CIL monies/infrastructure provision..
37. In assessing the impact of your rate/s on the delivery of your plan as a whole have you taken into account,
- the costs associated with Regulatory requirements on viability
- the costs associated with policies on planning obligations, including affordable housing and strategic sites, on viability
- potential impact of exemptions or reductions relating to reliefs on the amount of CIL you can collect and therefore spend on infrastructure (paras 2.7 )( & Neighbouthood proportion 2.4.1)
- the amount of income and affordable housing that you are currently receiving from development- if this is not consistent with your rate can you explain why?
38. Have you avoided setting your rate/s at the margins of viability across the majority of your area? Do you have evidence to demonstrate this? (para 18.104.22.168)
39. As part of your evidence for examination have you clearly set out your approach to the future use of CIL, S106 ( para. 2.5.2) and s 278 ( para. 2.6.5)?
- Do you need to amend your local plan or supplementary policy to reflect the changes to the authorities' use of s106, the highway authorities use of s278 and introduction of CIL? (para22.214.171.124.)
- Have you made sure that your highway authority understand the relationship between CIL and s278? ( para 2.6.5)
- Are you proactively working with your developers to make sure they understand the infrastructure you need to support growth and what they may be asked to contribute to and through which route?
- Have you produced a draft Regulation 123 list? (para.126.96.36.199.& 188.8.131.52)
- Have you stated how your approach and/or policies to s106 will be scaled back or varied by your CIL? (para.2.6.2,2)
- Have you set out future use of pooled s106? (para.184.108.40.206)
[ See paragraph 173 of the National Planning Policy Framework in England:
173. Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision-taking. Plans should be deliverable. Therefore, the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened. To ensure viability, the costs of any requirements likely to be applied to development, such as requirements for affordable housing, standards, infrastructure contributions or other requirements should, when taking account of the normal cost of development and mitigation, provide competitive returns to a willing land owner and willing developer to enable the development to be deliverable.