CIL Section 73: How Amended Permissions Affect the Levy

 

CIL section 73 has its own calculation rules. A new permission granted under section 73 of the Town and Country Planning Act 1990 does not simply wipe the old CIL position and start again using today’s charging schedule. Schedule 1 to the CIL Regulations compares the amended permission with the earlier permission and works out whether the levy stays the same, increases or falls.

This can also affect relief, instalments, Liability Notices and any CIL which has already been paid. For the standard formula before the section 73 comparison is applied, see our CIL calculation guide.

 

How CIL section 73 works

 

A section 73 application changes or removes a condition on an existing planning permission. If granted, it produces a new planning permission. For planning purposes that new permission sits alongside the original one, but CIL has special rules to avoid treating every amendment as an entirely fresh development.

Part 2 of Schedule 1 to the CIL Regulations calls the earlier permission A and the section 73 permission B. It compares a notional CIL amount for each.

The broad result is:

• If the notional amount for B is the same as A, the chargeable amount remains the amount shown in the most recent Liability Notice for A
• If the notional amount for B is higher, Schedule 1 calculates the increased liability
• If the notional amount for B is lower, Schedule 1 calculates the reduced liability

The detailed formula matters, particularly where the scheme has already been amended once, contains several rates, or has benefited from relief.

 

The new permission does not simply use today’s rate

 

For the basic comparison, Schedule 1 deliberately ties permission B back to permission A. When calculating the notional amount for B, it treats B as first permitting development on the same day as A, uses the index figure for the year in which A was granted, and refers back to the charging schedule which was in force at the relevant time for A.

That prevents a routine amendment from being charged as though the whole development had first been permitted years later at a completely different CIL rate.

There are additional rules for outline permissions, repeated section 73 permissions and phased development, so a complex scheme should be checked against the actual Schedule 1 route rather than a simple before-and-after floorspace comparison.

 

A pre-CIL permission can still need a calculation

 

An original permission granted before the charging authority had a CIL charging schedule is normally outside CIL. But a later section 73 permission granted after CIL is in force is not simply ignored.

Part 4 of Schedule 1 contains transitional rules for a pre-CIL permission which is later amended when CIL is operating. The calculation compares the amended scheme with a notional CIL position for the earlier permission so that the section 73 change, rather than automatically the whole historic development, drives the levy calculation.

Phased pre-CIL permissions have additional rules, including provisions for phase credits. This is one of the areas where the exact history of every permission matters.

 

Relief may carry over, but do not assume it does

 

Regulation 58ZA allows specified reliefs and exemptions to carry over to a later section 73 permission where the amount of relief or exemption granted for the new permission is the same as the amount granted for the earlier permission.

This can apply to residential annexe and extension exemptions, self-build housing, charitable relief and social housing relief. If the amended scheme changes the amount of relief, the automatic carry-over rule does not solve the problem and a further claim may be required.

That is why a section 73 application should be checked for CIL before it is submitted, particularly where the original scheme relied on an exemption or relief.

 

What happens to CIL already paid?

 

Regulation 74A deals specifically with section 73 permissions where CIL has already been paid and the authority later issues a new or revised Liability Notice because the chargeable amount has changed.

A person liable for the development may ask the charging authority to credit the CIL already paid against the amount due under the new or revised Liability Notice. The request must include proof of what has already been paid, and the charging authority must grant a valid request.

Regulation 74A is the credit mechanism for CIL already paid. Where the recalculated section 73 liability is lower and the amount previously paid exceeds the new liability, current government guidance confirms that the excess is repayable. The revised liability still has to be calculated correctly first, so do not assume the refund figure from a simple before-and-after floorspace comparison.

 

Instalments can survive the amendment

 

Regulation 70 contains a useful protection. Where CIL under the earlier permission was payable under an instalment policy and a later section 73 permission is granted for the development, the CIL under the section 73 permission is payable in accordance with that instalment policy.

This prevents a section 73 amendment from automatically moving the development onto a later instalment policy simply because the planning permission has changed.

 

Expect a revised Liability Notice

 

Where a section 73 permission changes the chargeable amount, the collecting authority will need to deal with the CIL notice position. Regulation 65 requires a revised Liability Notice where the chargeable amount or specified relief particulars change.

A revised notice matters because the CIL review and appeal clocks are tied to statutory notices. Do not assume that a defective earlier notice has simply disappeared because a later notice arrives.

In R (Braithwaite and Melton Meadows Properties Ltd) v East Suffolk Council [2022] EWCA Civ 1716, the Court of Appeal rejected the argument that a defective earlier Liability Notice was automatically a nullity. A public-law decision remains effective unless and until it is quashed, and a later revised notice can supersede an earlier one. The case is a strong warning not to leave a notice unchallenged simply because you believe it is defective.

 

How to challenge the amended CIL calculation

 

If the dispute is about the chargeable amount, the ordinary route normally starts with a regulation 113 review within 28 days of the Liability Notice, followed where necessary by a regulation 114 appeal to the Valuation Office Agency within 60 days of the original Liability Notice.

Schedule 1 also contains a specific appeal route for certain disputes involving pre-CIL permissions amended after CIL came into effect, including disputes about chargeable amount or notional relief.

Commencement can close the ordinary review and appeal routes, so do not start work while assuming the calculation can be sorted out later. Our CIL appeals guide explains the routes and deadlines.

 

The planning application is a separate decision

 

The CIL rules do not decide whether the section 73 application itself should be granted. Our section 73 amendment guide explains what can and cannot be changed through section 73.

If the section 73 application is refused, normal planning appeal rights may be available. See our planning appeals guide.

The planning application fee is separate from CIL. See our planning application fees guide.

 

Relevant CIL section 73 rules

 

• Schedule 1 Parts 2 and 4: amended planning permissions
• Regulation 58ZA: carry-over of relief
• Regulation 70: payment periods and instalments
• Regulation 74A: credit for CIL already paid

Community Infrastructure Levy (CIL)

 

CIL Section 73 Page Created: 30th August 2026