* Non-material changes to planning permission — householder application, £25; and in any other case, £170.

* Extension of time -  householder application, £50; application for major development, £500; and in any other case, £170.

I know a lot of people have been keeping an eye out waiting for these regulations to come into force so I expect a raft of extension applications will be submitted very shortly. Note that the non-material changes fees are new, rather than reduced fees - they're not quite such good news!

Social housing relief is to be available for the social housing element of chargeable development. The regulations set out how this is to be calculated but, importantly, a person wishing to claim this relief must satisfy 2 tests; 1) the claimant must be an owner of the land which has the benefit of the planning permission and 2) that person must assume liability to pay the whole CIL liability for the development which is permitted by the planning permission. An application for relief must be submitted before commencement of the development - and the claimant must wait for the authority to notify its decision on the claim before commencing, otherwise the claim lapses (as is the case with charitable relief).

I am not quite sure how in practice this is to work for phased development - where you may not even be able to fill in the claim form for the housing phase when you are looking to start on a different phase. As I flagged up yesterday in relation to the way in which an outline planning permission must be structured in order to achieve phased payment of CIL, the same issue arises for claiming social housing relief. You must ensure  your planning permission is correctly worded.

Unlike social housing relief, the relief for exceptional circumstances, where an authority makes it available in its area, is discretionary - because it will depend on satisfying the authority 1) that there are exceptional circumstances justifying relief and 2) that it is expedient for relief to be granted. The idea behind this relief is apparently to meet the concerns that some developments would be rendered unviable by CIL and whereas the potential effects of CIL on viability across the area is relevant in the setting of rates, the concerns have been that this does not go far enough where particular sites/developments have particular issues and will be unviable if CIL is to be paid.

This relief may only be granted where there is already a section 106 obligation in respect of the relevant development and the authority considers that the cost of complying with the 106 is greater than CIL and that to require CIL would have an unacceptable impact on viability. What I cannot work out is why the section 106 is relevant here? if the 106 (and therefore the relevant permission) are pre -CIL, then under the transitional provisions, CIL does not apply. If the permission has been granted post CIL, we should assume that any 106 is for matters which are not covered by CIL, so that CIL is indeed an additional burden - but why then does the 106 have to cost more than CIL?

Note that you cannot claim for this relief as well as social housing or charitable relief.  

However, I wanted to flag up a couple of points which have not changed substantially from the July draft. The first of these related to phased development. The regulations recognise that many outline permissions will be implemented in phases. If an outline permits the development "to be implemented in phases", then each phase is a separate chargeable development which means the CIL payments will follow the phases so as to allow a phased approach to payment. However, this only works if your outline "provides for the application for approval of reserved matters within separate periods for separate parts of the development". So if all you have is an outline with, say, an extended period for reserved matters applications, because it is understood that the development will take several years and will be developed in phases perhaps dependent on market conditions as to the order in which phases come forward, then this will not be sufficient to take advantage of the phasing allowance in the CIL regulations.

The other point relates to planning permissions granted following an application under s 73 of the 1990 Act. Although we often call these "applications to vary conditions" inposed on an earlier planning permission - in law the earlier permission is unaltered and instead, the s 73 application generates a whole new planning permission. So with that in mind, take a look at regulation 9(5). This says that where a s 73 permission extends time for implementation (actually that is no longer possible but I am assuming this actually means "where you obtain a s 73 permission which itself has an updated period for implementation compared to the original"), then the chargeable development is the development for which permission is granted by the previous permission.

So does that mean, that if you never implement the earlier permission and instead implement the s 73 permission, you manage to avoid CIL?

The provisions introducted in October 2009 providing a simplified procedure for applying to extend the time period for implementing a planning permission also allows you to extend the time period for submitting reserved matters. What though if you have been able to split an outline consent into clear phases, each with its own reserved matters? It looks as though submitting reserved matters for just one of those phases means you will have tied yourself to the given time constraints and cannot extend in relation to the remaining phases. Have readers found a way to deal with this?

There are quite a few changes from the draft Regulations. For starters, we now have a transitional provision (Reg 128) purporting to let developments off the CIL-hook if planning permission is granted before the relevant authority has a charging schedule in force.

Also new are the exclusions for affordable housing and exceptional circumstances. It will be interesting to see how the latter works - it requires the charging authority to have made provision for it in its area and for there to be a s106 in place for which the cost of compliance is greater than the CIL otherwise due. Note that proposals to scale back s106s remain.

There is still no obligation on charging authorities to report on timings for upcoming expenditure, or any obligation to actually provide what they have set out in their charging schedules. Equally, there is nothing requiring them to keep these schedules up to date.

Many of the amendments made have been so made for good reasons, but I suspect the regime will still have its issues (not least the Tories...).

The Select Committee was very concerned about the risk of judicial review of the NPSs and about what we had said about democratic deficit.  I suppose with hindsight that telling Parliamentarians in our evidence that the system they have enacted contains a democratic deficit was always going to ruffle a few feathers, but the Committee accepted the point that the IPC has minimal democratic accountability. An important test of a system which deals with disputes, such as courts and the planning system, is whether the loser comes away content with the decision. Maybe they are reluctantly content, but do they accept it? The danger with this system it seems to me is that people may not accept the decisions, especially where we have been used to such decisions being taken after a full hearing and where the IPC has to follow the NPS, itself decided at very high level. This is a particular issue where the NPS specifies the locations.  We don't really want a rerun of the Twyford Down, Newbury Bypass and Batheaston Bypass protests, with activists dug into tunnels and living up trees. The Select Committee seemed to follow that point well.  The issue for them, I said, is that they are the body which provides the maximum amount of democratic input and so they have a major and serious task, weighing the evidence.

As is well known, the IPC is to take its decisions in accordance with the NPS unless adverse effects outweigh the advantages. With a site specific NPS, one is bound to ask whether the IPC is really going to come to a decision to refuse on that ground, especially one which says we need 10 sites and only puts forward 10.  Again the Select Committee took that point on board. 

There is another interesting issue in the energy NPSs, is that they say their policies are to apply to developments which go through the conventional planning system.  Whilst it must be right that they are material, and for example planning applications for roads which access a nationally significant infrastructure project should be decided having regard to the NPS there is a greater implication.  An application for 49MW wind farm in an area opposed to wind farms must be considered against the Government's up-to-date policy in the NPS.  We'd written that the local planning policies are "trumped".  I was called to justify that (possibly emotive) word and was asked whether the DCLG Chief Planner's letter to all local authorities of 9th November 2009 contradicted our assertion.  Quite the contrary - it makes the very same point. Paragraphs 15 and 16 require LPAs to update their plans to take account of NPSs, and says that if they do not the NPSs will be a material consideration in decisions of the Secretary of State on appeal or call-in.

Finally - the possibility of Judicial Review concerned the Select Committee. It's not possible to rule it out and these are controversial matters which tend to attract JR. We discussed the problem explained in my earlier post - Nuclear NPS - Is there a Problem? . One member asked whether the Government could deal with the problem by going back to reconsult now. Good point really, and unpalatable though it sounds, it strikes me as being better than waiting for a JR which on the rules in the Act cannot be commenced until the NPS is adopted and published.

I am grateful to the Select Committee for the chance to put these views and for listening to them with care and courtesy.  I have to say it is a privilege to participate in the democratic process in this way.