Document

Community Infrastructure Levy (CIL) Enforcement Policy

What is the Community Infrastructure Levy?

The Community Infrastructure Levy (CIL) is a charge on development, calculated on a £ per square metre (sq.m) basis of development. CIL is intended to be used to help fund infrastructure to support the development of an area rather than making an individual planning application acceptable in planning terms, which is the purpose of Section 106 Agreements. CIL does not fully replace Section 106 Agreements.

The purpose of this document

Community Infrastructure Levy Regulations 2010 contain enforcement provisions, aimed at ensuring that the collection process runs smoothly, by giving collecting authorities the power to issue a range of surcharges, stop notices, and if necessary to recover funds by appropriate legal action. Collection and enforcement arrangements are supported by the right to appeal certain decisions.

These enforcement procedures can be triggered by the following:

Failure to complete and submit the relevant CIL form(s).
Failure to inform of a disqualifying event
Late Payment
Failure to comply with an information notice from the Charging Authority

The surcharges and interest applied to CIL are solely for situations where the correct paperwork has not been submitted to the Charging Authority and/ or that payment has not been received, meaning that the regulations’ procedures have not been followed.

Please note the below is a summary – please see the CIL Regulations 2010 (as amended) for details.

Surcharges

There are 7 regulation surcharges.

Regulation 80: Failure to assume liability (CIL form 1)

Applicable if nobody has assumed liability by submitting CIL form 1 and the chargeable development has commenced
£50 on each person liable to pay CIL. In addition, loss of payment by instalments

Regulation 81: Apportionment of Liability (failure to assume liability where there is more than one material interest in the land)

Applicable if nobody has assumed liability by submitting CIL form 1, and the Charging Authority (HDC) has to apportion liability between more than one material interests in the land
£500 on each material interest. In addition, loss of payment by instalments. If this surcharge is applied and apportionment of the surcharge is required by the Charging Authority, additional surcharges will not be applied under this regulation

Regulation 82: Failure to submit a Notice of Chargeable Development (CIL form 5)

Applicable if planning permission has been granted for the chargeable development by way of general consent, and; the chargeable development has been commenced without the submission of Form 5 to the Charging Authority (HDC)
20% of the chargeable amount payable or £2500; whichever is the lesser. In addition, loss of payment by instalments

Regulation 83: Failure to submit a Commencement Notice (CIL form 6)

Applicable if the chargeable development has commenced before the Charging Authority has received a valid Commencement Notice (CIL form 6)
20% of the chargeable amount payable or £2,500; whichever is the lesser amount. In addition, loss of payment by instalments

Regulation 84: Failure to notify of a disqualifying event

Applicable where a person who is required to notify the relevant authority of a disqualifying event fails to do so before the end of the period of 14 days beginning with the day on which the disqualifying event occurred.
20% of the chargeable amount payable or £2,500; whichever is the lesser amount. In addition, loss of payment by instalments and loss of any granted exemption or relief

Regulation 85: Late payment

Applicable where the levy amount due (A) is not received in full after the end of the 30 day period beginning with the day on which payment of A is due. (Also applicable at 6 and 12 months).
5% of the overdue amount (A) or £200, whichever is the greater. This can be applied on 3 occasions; 30 days; 6 months; and 12 months

Regulation 86: Failure to comply with an information notice

Where a person fails to comply with any requirement of an information notice before the end of the period of 14 days beginning with the day on which the notice is served.
20% of the relevant amount or £1,000, whichever is the lesser.

Regulation 87: Late payment interest

Applicable where payment is not received on the date it is due. Interest is calculated for the period starting on the day after the day payment was due and ending on the day the unpaid amount is received.
2.5 percentage points above the Bank of England base rate.

Key terms

Disqualifying event

If you were to commence development without the submission of Form 6- Commencement of Development, then this would constitute a disqualifying event. For applications that have had relief or exemption granted, a disqualifying event would be triggered by a change in circumstances impacting on the chargeable development and is in breach of the claw back period or declaration statement signed by the liable party.

If the chargeable development has not commenced then the surcharge is payable on commencement of that chargeable development. However, if the development has commenced then the surcharge will be payable on the day is it imposed.

Valid commencement notice

To be valid, the commencement notice must be:

In writing on a form published by the Secretary of State
Received by the Charging Authority at least 1 day prior to the commencement date
Include the latest Liability Notice Reference number
State the intended commencement date
The details of the person submitting the notice
A signed and dated declaration

Notice of a Chargeable Development

CIL is not only applicable to planning permissions granted by the Local Planning Authority. Permitted development/ permission by way of general consent can still be liable for CIL, and it is the responsibility of the land owner (liable party) to inform the Charging Authority of development via Form 5 (Notice of Chargeable Development), if the development falls into the adopted charging schedule parameters and if development is;

Creating a dwelling
Increasing the floor area by 100 sq m
Converting a building that is not in use

The definition of lawful use is contained in Schedule 1, Part 1, paragraph 1(10) of the CIL Regulations 2010 as (amended). This states that an "in use building" is a building which "contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development".

CIL Stop Notices

As Charging Authority we must keep a register of all CIL Stop Notices issued. The CIL Regulations 2010 (as amended) inform that they should be logged on the Local Planning Authorities enforcement and stop notices register, in which HDC’S Enforcement Team update under section 188 of the Town and Country Planning Act 1990. All entries to this register must be removed from the register if the notice is withdrawn or quashed.

Regulation 89: Preliminary steps

Applicable where an amount which has become payable in respect of the chargeable development has not been paid; and the collecting authority considers it expedient that development should stop until the amount has been paid.
The charging authority may issue a warning notice of its intention to impose a CIL stop notice on the chargeable development. This notice must be in writing and must also display a copy of the warning notice on the relevant land.

Regulation 90: Service of CIL Stop Notice

Applicable where the collecting authority has issued a warning notice in respect of the chargeable development. The amount specified in the warning notice is unpaid (in whole or in part) at the end of the period specified in the notice.
The Charging Authority must have issued a warning notice.
The amount specified in the warning notice must not have been paid in whole or in part at the end of the specified period.
The Collecting Authority must display a copy of the CIL stop notice on the relevant land, and it has effect from the date specified in the notice until the date it is withdrawn by the Collecting Authority.
A CIL stop notice does not prohibit any works on the relevant land which are necessary in the interests of health and safety.

Regulation 91: Withdrawal of a CIL Stop Notice

Applicable where the unpaid amount stated in the notice is paid in full to the collecting authority. The collecting authority withdraws a CIL stop notice (without prejudice to its power to issue another) by serving written notice to that effect on the persons served with the CIL stop notice.
A Collecting Authority may withdraw a CIL stop notice at any time by serving a written notice to that effect to the persons served with a CIL stop notice.
A collecting Authority must withdraw a CIL stop notice when the unpaid amount stated in the notice is paid in full
A Collecting Authority which withdraws a CIL stop notice must display a notice of withdrawal on the relevant land in place of the CIL stop notice.
A stop notice ceases to have effect on the day the collecting authority serves notice of its withdrawal.

Regulation 93: Offence

Applicable where a person contravenes the CIL stop notice that has been served upon them; where A copy of which has been displayed in accordance with regulation 90(6).
There is a potential fine of up to £20,000 (or more on indictment - the formal charge or accusation of a serious crime)
An offence may be charged by reference to a day or a longer period of time.
A person may be convicted of more than one such offence in relation to the same CIL stop notice by reference to different days or period of time.
It is a defence for a person charged with an offence if the CIL stop notice was not served on that person and the person did not know, and could not reasonably have been expected to know, of its existence.
In determining the amount of the fine the court must have regard in particular to any financial benefit which was accrued or has appeared to accrue to the person convicted in consequence of the offence.

Regulation 94: Injunctions

Applicable where the collecting authority may apply to the court for an injunction if it considers it necessary or expedient for any actual apprehended breach of a CIL stop notice to be restrained by injunction.
On an application under this regulation the court may grant such an injunction as the court thinks fit for the purpose of restraining the breach
In this regulation ‘the court’ means the High Court or a county court.

Recovery of CIL

Collecting authorities have powers to recover unpaid charges that are due using the mechanisms provided in regulations 95-107 that can be used alongside CIL Stop Notices. In cases where the development has been completed, recovery of CIL can still take place independently of a CIL stop notice:

96 Reminder Notice

Prior to putting into action the mechanisms below, the Collecting Authority must serve a reminder notice that states every amount in respect of which the Authority is to make the application. The reminder notice may be served in respect of any amount at any time after it has become due.

97 Liability Order

Following the reminder notice, if the amount is still wholly or partly unpaid the Authority can apply to the Magistrates Court for a Liability Order. This can include if requested, recovering the cost of the application in the same order. The Court must make the liability order if it is satisfied that the amount has become payable by the defendant and has not been paid.

98 Distress

Where a Liability Order has been made the Authority may levy the appropriate amount by distress and sale of goods of the debtor. No person making a distress may seize any clothing, bedding, furniture, household equipment or provisions which are necessary for satisfying the basic needs of the debtor and his family. If, before any goods are seized the outstanding amount is paid or tendered to the Authority, the Authority must accept the amount and proceed with the levy.

100-101 Commitment to prison

Where an Authority is unable to recover debts due by way of the charging order or distress the Authority may ask to commit the debtor to prison. This is a very unlikely scenario; however the regulations do offer this mechanism to recover the unpaid levy.

103-104 Charging Orders

As an alternative to recovering the debt via distress and where the outstanding debt is greater than £2000 the Authority can ask the Court to serve a charging order to recover the amount of debt owed.

107 Enforcement of local land charges

As an alternative to recovering debt via distress and Charging Orders the Authority can enforce a local land charge if the outstanding amount of CIL due in respect of that development is less than £2000.

Other enforcement provisions

The CIL Regulations lay out additional guidance for the recovery of CIL in certain scenarios. They also give guidance on the mechanisms for the Collecting Authority to have the power to enter the relevant land relating to the chargeable development through regulations 108 – 111.

108 Outstanding liabilities of death

Where the person liable for CIL is deceased with the chargeable development commenced and CIL liability still outstanding, the deceased’s executor or administrator is liable to pay the unpaid amount and any interest, surcharges and costs applied to the unpaid amount.

109 Powers of entry

A person authorised in writing by a Collecting Authority may at any reasonable hour enter the relevant land to verify:

A chargeable development has commenced
Compliance for an imposed requirement of the Charging Authority has taken place
The calculation for chargeable amount payable in relation to the chargeable development where Form 5 – Notice of Chargeable Development has been submitted.

CIL can be a complex process and each development site can have its own complications and or nuances which may give rise to instances where the Charging Authority will conduct a site visit to obtain / check information or in order to monitor the development for commencement.

Site visits will normally only be requested if it is not possible for the Charging Authority to issue the relevant notices with the information supplied to them, making a confirmation via site visit a necessity.

110 Offences for supplying false information

It is an offence for a person, knowingly or recklessly, to supply information which is false or misleading in a material respect to a Collecting Authority in response to a requirement of the CIL regulations. A person guilty of an offence under the CIL regulations is liable on summary conviction to a fine not exceeding £2000 or on conviction or indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

111 prosecution of CIL offences

A Collecting Authority may prosecute proceedings for any offence under the CIL regulations.

Please contact the CIL Team is you have any enquiries arising from this CIL enforcement policy.

It is possible to appeal against the calculation of CIL and if you believe that the process has not been followed correctly by the Charging Authority. The appeal process is set out in greater detail within the ‘Community Infrastructure Levy Appeals Guidance’ document.

CIL Process Maps: Example scenarios

Scenario 1: An Assumption of Liability form and valid Commencement Notice are submitted

CIL liable application approved
Liability Notice issued and assumption of liability request sent
Assumptions of liability received
HDC acknowledge receipt of Assumption of liability form and issue amended Liability Notice
At this point, the relief claim is either applied or denied. If the relief claim is received, the relief is applied and a new Liability Notice is sent. If the relief claim is denied, a Relief Decision Notice is sent
Commencement Notice is received at least 1 day prior to the commencement date
HDC acknowledge Commencement Notice
Demand Notice and invoice sent to the liable party

Scenario 2: An Assumption of Liability form is submitted but no valid Commencement Notice

CIL liable application approved
Liability Notice issued and assumption of liability request sent
Assumptions of liability received
HDC acknowledge receipt of Assumption of liability form and issue amended Liability Notice
At this point, the relief claim is either applied or denied. If the relief claim is received, the relief is applied and a new Liability Notice is sent. If the relief claim is denied, a Relief Decision Notice is sent
Commencement
HDC deem commencement and add surcharge for failure to submit Commencement Notice
Demand Notice, Deemed Commencement Notice and Surcharge Notice sent to liable party with invoice

Scenario 3: Valid Commencement Notice but no Assumption of Liability received

CIL liable application approved
Liability Notice issued and assumption of liability request sent
Commencement Notice received at least 1 day prior to commencement date
HDC acknowledge Commencement Notice
Assumption of liability request sent to person submitting Commencement Notice
If the Assumption of liability is received prior to Commencement date, HDC acknowledge receipt of the Assumptyion of Liability form and issue amended Liability Notice. After Commencement, a Demand Notice and invoice are sent to the liable party
It the Assumption of liability is not received before Commencement, a Land Registry search is performed to find the landowner. A surcharge is added for the failure to assume liability. If there is more than one landowner, a surcharge for apportionment or liability is added. A Demand Notice, Surcharge Notice and invoice are sent to the default liable party

Scenario 4: No Assumption of Liability or valid Commencement Notice received.

CIL liable application approved
Liability Notice issued and assumption of liability request sent
Commencement
Land Registry search performed to find landowner
HDC deem commencement and add surcharge for failure to submit Commencement Notice. Surcharge added for failure to assume liability. If there is more than 1 landowner, a surcharge for apportionment of liability is added.
Demand Notice, Surcharge Notice and invoice sent to default liable party

Scenario 5: Late payment, less than 30 days

Payment reminder letter sent to liable party
Payment due date
Payment received after due date
Late payment interest calculated from day after payment due until date payment received. Where the amount is less than £50, the amount is deemed to be zero
Instalment policy revoked and new Demand Notice issued to include any late payment interest
Demand Notice and invoice for late payment interest sent to liable party

Scenario 6: Late payment, more than 30 days

Payment reminder letter sent to liable party
Payment due date
30 days after the due date, a 30-day Late Payment Surcharge is added and instalment policy revoked. A new Demand Notice issued and invoice sent to liable party with a letter outlining consequences of non-payment and warning of referral to Legal for recovery measures if payment not received within 30 days
Payment received less than 60 days after due date
Late payment interest calculated from day after payment due until date payment received. But where the amount is less than £50, the amount is deemed to be zero
Demand Notice and invoice for late payment interest sent to liable party

Scenario 7: Late payment, more than 60 days

Payment reminder letter sent to liable party
Payment due date
30 days after due date, a 30-day Late Payment Surcharge added and instalment policy revoked. New Demand Notice issued and invoice sent to liable party with a letter outlining consequences of non-payment and warning of referral to Legal for recovery measures if payment not received within 30 days
60 days after due date, the case is referred to Legal for recovery measures
A Legal Warning Notice/Liability Order Reminder Notice is sent to liable party
If full payment is not received within 7 days, legal proceedings will be issued
Once payment is received, Late payment interest is calculated from the day after payment until date payment received. But where the amount is less than £50, the amount is deemed to be zero
Demand Notice and invoice for late payment interest sent to liable party

Scenario 8: Late payment, more than 6 months

Payment reminder letter sent to liable party
Payment due date
30 days after due date, a 30-day Late Payment Surcharge added and instalment policy revoked. A new Demand Notice issued and invoice sent to liable party with a letter outlining consequences of non-payment and warning of referral to Legal for recovery measures if payment not received within 30 days
60 days after due date, the case is referred to Legal for recovery measures
A Legal Warning Notice/Liability Order Reminder Notice is sent to liable party
If full payment is not received within 7 days, legal proceedings will be issued
After 6 months, a 6 Month Late Payment Surcharge is added as well as the Late payment interest. A new Demand Notice is issued and invoice sent to liable party
Once payment is received, Late payment interest is calculated from the day after payment until date payment received. But where the amount is less than £50, the amount is deemed to be zero
Demand Notice and invoice for late payment interest sent to liable party

Scenario 9: Late payment, more than 12 months

Payment reminder letter sent to liable party
Payment due date
30 days after due date, a 30-day Late Payment Surcharge added and instalment policy revoked. A new Demand Notice issued and invoice sent to liable party with a letter outlining consequences of non-payment and warning of referral to Legal for recovery measures if payment not received within 30 days
60 days after due date, the case is referred to Legal for recovery measures
A Legal Warning Notice/Liability Order Reminder Notice is sent to liable party
If full payment is not received within 7 days, legal proceedings will be issued
After 6 months, a 6 Month Late Payment Surcharge is added as well as the Late payment interest. A new Demand Notice is issued and invoice sent to liable party
After 12 months, a 12 Month Late Payment Surcharge is added. A new Demand Notice is issued and invoice sent to the liable party
Once payment is received, Late payment interest is calculated from the day after payment until the date the payment is received. But where the amount is less than£50, the amount is deemed to be zero
Demand Notice and invoice for late payment interested is sent to liable party

Further information

For more information you can also:

Visit the Council’s CIL webpages
Read the Planning Policy Guidance
Email cil@horsham.gov.uk
Call Horsham’s Planning enquiry line (01403) 215187
Visit the Planning Portal
Read Horsham District Council CIL Charging Schedule

Download this document as a PDF

HDC CIL Enforcement Policy.pdf (PDF File, 313.9 KB)