County council mulls legal action against districts over lack of Community Infrastructure Levy proceeds

Gloucestershire County Council is considering a test case against some of the county’s district councils over “tens of millions of pounds” it thinks it is entitled to from the proceeds of the Community Infrastructure Levy (CIL).

It has taken advice from a King’s Counsel after suffering an 86% fall from the £20m revenue it collected from planning gain in recent years.

A meeting of the county’s Environment Scrutiny Committee heard in a report from Simon Excell, Assistant Director for Planning and Economic Development, that he was particularly concerned about requested contributions towards education and libraries and “tens of millions of pounds of financial contributions per annum are failing to be secured by GCC for essential infrastructure, such as primary and secondary schools.

“There have also been several instances of the advice on flood alleviation from GCC not being adhered to.”

He said the issue had been raised with district senior managers and Gloucestershire might take legal action if there was no change.

His report said there was a “significant area of major disagreement” between most districts and the county over the CIL, which is collected by districts.

Only Stroud had implemented a process for actively distributing CIL funds for strategic projects and Gloucestershire had received £237,050 allocated for four highways and transport projects in 2020-21.

But even here there were problems as Stroud only made funding decisions for the next financial year and “obviously, this results in GCC’s inability to bid for a new primary and/or secondary school, as the expenditure would be well beyond the next financial year”, the report said.

Mr Excell said: “Despite significant CIL funding being received by the district councils, it mostly (with the exception of Stroud) remains unspent.”

Gloucestershire had “not received a penny of CIL” from Cheltenham, Cotswold, Gloucester City or Tewkesbury councils, while the remaining one, Forest of Dean, had no CIL charging scheme.

“This is an increasingly serious issue which needs to be acted upon by the [districts] in question as a matter of urgency,” he said.

Gloucestershire’s cabinet member for environment and planning David Gray said: “Gloucestershire has seen the amount of money received from new developments that is used for vital new infrastructure, such as new schools, drop from over £20m a year a few years ago to around £2.7m this year.

“This is largely due to the way district councils have been applying CIL which has excluded GCC from securing the money required.”

Cllr Gray said the county had taken “the highest level legal advice from King’s Counsel in respect to a particular ‘test case’ site”.

The KC’s advice had been “unequivocal, that actions taken by the districts were unlawful” and Gloucestershire had provided that advice to the districts.

“We want to work jointly with districts to find a way forward to ensure the county is well provided for now and in the future but we can’t allow the current situation to continue,” he said.

Sandra Ford, head of development services at Tewkesbury, said: “We were surprised by some of the comments made during this recent council meeting, and we noted members in attendance were concerned by some of the phraseology, such as ‘skimmed off’ – noting that they weren’t ‘conducive to good local government’.

“It was unfortunate that the report was not shared with us before publication - it would have been helpful to have the opportunity to comment.

“Clearly, it’s important that partners work together on the effective distribution of CIL, and we will look to meet with our county colleagues to have a meaningful discussion on this.”

A Cotswold District Council spokesperson said: “As the Community Infrastructure Levy (CIL) becomes due upon actual commencement of development and it is paid by instalments, it takes a couple of years before enough funding has accumulated to be able to fund infrastructure. CIL was introduced at Cotswold District in June 2019 and the council will be inviting bids for the first time in Spring 2023. It is envisioned that the vast majority of collected funds will indeed go to Gloucestershire County Council as they are the largest infrastructure provider in the district.

“We would like to note that a large amount of CIL funds collected in Cotswold District comes from small schemes which would not have been subject to a S106 agreement. This means that overall, the council's move to this new way of collecting infrastructure contributions from developers means that we are now able to secure more money to the benefit of the Parish, District and County Councils.”

Other districts have been contacted for comment.

Mark Smulian