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Exceptional circumstances relief policy

In accordance with Regulation 56 of the Community Infrastructure Levy Regulations 2010 (as amended), (the CIL Regulations), Cheshire West and Chester Council (the Council), gives notice that exceptional circumstances relief is available across the borough. The Council will accept claims for discretionary exceptional circumstances relief from 20 April 2018. Discretionary relief must be claimed and approved prior to the commencement of chargeable development.

The CIL Regulations (55 to 58), allow charging authorities to grant relief from liability to pay CIL, if it appears to the authority that there are exceptional circumstances which justify doing so and the authority considers it expedient to do so. Use of an exceptional circumstances relief policy, enables the charging authority to avoid rendering sites, with specific and exceptional cost burdens, unviable. However, the Council may make a judgement, in individual cases, that exceptional circumstances are not solely based on economic viability. Even where the CIL may give rise to an unacceptable impact on the economic viability of the chargeable development, the Council may also require demonstration of wider community benefits, such as, but not limited to:

  • bringing a redundant, listed building back in to use
  • contribution to the local economy providing a tourist attraction, bolstering the historic culture of Cheshire West and Chester
  • providing facilities to accommodate a local charity/organisation

Only where there are wider community benefits would a development be considered for exceptional circumstances relief. Submitting a planning application that, at the time of application is financially unviable due to the CIL charge, is unlikely to constitute an ‘exceptional circumstance’ sufficient to justify relief by itself.

It is important to note that the CIL rate in Cheshire West and Chester, which only applies to a shortlist of development types, has been set at a level that most development can afford to pay the CIL charge; this is supported by viability evidence that takes into account the development specific Section 106 obligations, including affordable housing. In view of this, the exceptional circumstances where this policy will be applied are rare.

The CIL Regulations specifies the requirements that must be met in making the exceptional circumstances assessment as follows:

Regulation 55 (3) A charging authority may only grant relief for exceptional circumstances if:

  • it has made relief for exceptional circumstances available in its area
  • a planning obligation under section 106 of TCPA 1990(1) has been entered into in respect of the planning permission which permits the chargeable development
  • considers that to require payment of the CIL charged by it in respect of a chargeable development would have an unacceptable impact on the economic viability of a chargeable development
  • it is satisfied that to grant relief would not constitute a State aid which is required to be notified to and approved by the European Commission.

The person claiming relief must be an owner of a material interest in the relevant land. In accordance with Regulation 57, a claim for relief must be submitted in writing on the appropriate forms and be received and approved by the Council, before commencement of the chargeable development. This must be accompanied by:

  • an assessment carried out by an independent person of the cost of complying with the planning obligation mentioned in regulation 55(3)(b)
  • an assessment carried out by an independent person of the economic viability of the chargeable development
  • an explanation of why, in the opinion of the claimant, payment of the chargeable amount would have an unacceptable impact on the economic viability of that development
  • where there is more than one material interest in the relevant land, an apportionment assessment
  • declaration that the claimant has sent a copy of the completed claim form, to the owners of the other material interests in the relevant (if any).

A chargeable development ceases to be eligible for relief for exceptional circumstances if there is a Disqualifying Event before it commences, these include:

  • receiving CIL relief for charitable or social housing
  • the site (or part of the site) is sold
  • the development does not commence within 12 months of the Exceptional Circumstances Relief being granted.

The CIL Regulations give the Council the ability to withdraw this policy at any time, with only two weeks’ notice.