On 14 December 2017, the draft Community Infrastructure Levy (Amendment) Regulations 2018 were published. They propose an amended formula for calculating the adjustment to be applied to CIL liability, in relation to applications to vary planning permissions granted before a CIL charging schedule was in force. An explanatory memorandum can be accessed here.

Rates of CIL in charging schedules are indexed annually to the BCIS All-In Tender Price index. There has been some confusion about the CIL rates and indexation that apply in the circumstances above. Some charging authorities have sought to apply a formula to calculate CIL liability that is based on the indexation at the time of the original permission, leading to significantly inflated CIL liability.

The explanatory note accompanying the 2018 Regulations explains that to assess the additional CIL incurred as a result of any change introduced by a section 73 permission, the charging authority should “compare the CIL charge for the section 73 development to the hypothetical CIL charge that the original planning permission would have been subject to. The CIL liability is the difference between the two figures”. The levy is therefore only charged for the additional liability introduced through the section 73 permission.