Forum's concern at Calderdale's refusal to answer roof tax questions

Forum Chair, Tony Perryman, has expressed concern that Calderdale Council has refused to answer fundamental questions on how Calderdale’s local plan will be funded.

Calderdale Council’s Planning Lead has written to Clifton Village Neighbourhood Forum (CVNF) Chair, Tony Perryman, refusing to answer the Forum’s recent three questions submitted on the proposed local plan roof-tax.

In the latest hearings into Calderdale’s local plan examination, the Planning Inspector accepted that questions had emerged over whether Calderdale’s proposed use of a roof tax is lawful and gave the CVNF permission to make a further submission to explain the reasons.

Calderdale’s barrister requested that Calderdale Council be permitted the right of reply to the CVNF’s submission, and both documents were recently published on the council’s website.

Why is Calderdale proposing a roof tax?

The Local Plan Examination Process has revealed that the scale of developments in South East Calderdale, including the strategic extensions (garden suburbs), means that developers are unlikely (or unable) to fund the roads and other infrastructure up-front. This means the Council has had to devise another way to fund such infrastructure otherwise, the Garden Suburbs are clearly undeliverable. Usually, the council would set funding requirements as part of a planning condition, known as a Section 106 (s106) agreement, but this means the council cannot demonstrate the large-scale developments are deliverable in the public examination.

Calderdale introduced the roof tax proposal as new evidence in response to the acceptance at the examination hearings that developers would not fund necessary infrastructure upfront. The CVNF is concerned that the proposed roof tax cannot be lawfully applied to all new developments in South East Calderdale.

 

What did the Forum ask Calderdale to explain?

Calderdale made several assumptions in their submission to the Planning Inspector, including a clear acceptance that in order for its approach to be lawful (1) there must be a provable link between the roof tax contributions sought and the scale of impact of development, and (2) the roof tax process must not involve retrospective payments for infrastructure already delivered.

In respect of (1), the Council response fails to explain how a proposed roof tax will be fairly and reasonably related to the scale of development and its impacts.

In respect of (2), the Council states it will not borrow the money to pay for the infrastructure until a legally binding commitment is in place from the landowners and developers for the Garden Suburbs requiring them to make payments towards the infrastructure. Whilst it is suggested such agreements would be under s106 of the Planning Act, no details have been provided of how such agreement will be reached, which is especially problematic for the Council in the case of Thornhills, as it is well known that after many years of this process, there is still in fact, no agreement in place between rival groups of landowners across the site. In other words, there is in fact no certainty at all that a legally binding commitment from landowners can or will ever be achieved.

The Forum is therefore advised by its barrister that no provable link is in place, and there is no certainty that the roof tax will not involve retrospective payments. Ironically, Counsel’s advice to the Forum is that Calderdale’s response supports our submission i.e. without a clear, demonstrable, and provable link and an upfront legally binding mechanism to secure landowner contributions to infrastructure, the roof tax would not be lawful under the relevant section of the Planning Act.

What is the CVNF’s opinion?

The CVNF considers there is no rational way to conclude a roof tax will also be a “fairly and reasonably related contribution to the cost of infrastructure” and the other key remaining question is, can Calderdale explain the upfront mechanism being asserted as self-evident in para 29 and 30 of their response, including when it will be in place despite many years of no agreements between rival landowner groups?

To reaffirm the above points, the correct test is whether an individual payment under a s106 agreement fairly and reasonably relates to the development in scale and kind. It is not, as Calderdale infer in Para 21 of its response, for the Council to decide what is a fair apportionment.

The CVNF invited Calderdale to explain precisely:

  1. What is meant by the enforceable upfront mechanism in para 29/30?
  2. How will the upfront mechanism be secured, including timescales for and progress of all landowner agreements in respect of all qualifying sites?
  3. How does Calderdale intend to prove that the roof tax meets another necessary legal test of relevance in reg 122(2) of the CIL regulations?