Infrastructure levy for Scotland: discussion paper

Annex A: Text of Planning (Scotland) Act 2019

Part 5

Infrastructure levy

54 Power to provide for levy

(1) The Scottish Ministers may by regulations establish, and make provision about, an infrastructure levy.

(2) An infrastructure levy (within the meaning of this Act) is a levy—

(a) payable to a local authority,

(b) in respect of development wholly or partly within the authority’s area,

(c) the income from which is to be used by local authorities to fund, or contribute towards funding, infrastructure projects.

(3) Schedule 1 elaborates on the regulation-making power conferred by this section.

55 Guidance

(1) The Scottish Ministers may issue guidance to local authorities dealing with—

(a) how they are to discharge the infrastructure-levy functions conferred on them by regulations under section 54, and

(b) how infrastructure-levy income should be spent.

(2) Local authorities must have regard to any guidance under subsection (1) that is addressed to them.

(3) Guidance under subsection (1) may be addressed to—

(a) an authority, or more than one authority, identified in the guidance, or

(b) all authorities.

(4) The Scottish Ministers must make guidance issued under subsection (1) publicly available.

(5) The power under subsection (1) to issue guidance includes the power to—

(a) issue guidance that varies guidance issued under that subsection, and

(b) revoke guidance issued under that subsection.

(6) In subsection (1)(b), “infrastructure-levy income” includes monies collected as financial penalties imposed by virtue of paragraph 9 of schedule 1.

56 Interpretation of Part and schedule

In this Part and schedule 1—

“development” has the meaning given by section 26 of the Town and Country Planning (Scotland) Act 1997,

“infrastructure” includes—

(a) communications, transport, drainage, sewerage and flood-defence systems,

(b) systems for the supply of water and energy,

(c) green and blue infrastructure,

(d) educational and medical facilities, and

(e) facilities and other places for recreation,

“green and blue infrastructure” means features of the natural and built environments (including water) that provide a range of ecosystem and social benefits,

“infrastructure project” means a project to provide, maintain, improve or replace infrastructure.

57 Power to change meaning of “infrastructure”

The Scottish Ministers may by regulations modify section 56 so as to change, or clarify, the meaning of “infrastructure” for the purposes of this Part and schedule 1.

58 Lapsing of power to provide for levy

(1) The regulation-making power conferred by section 54 ceases to be exercisable if no regulations have been made under it within the period of 7 years beginning with the day that the Bill for this Act receives Royal Assent.

(2) If, by virtue of subsection (1), the regulation-making power conferred by section 54 ceases to be exercisable, the Scottish Ministers may by regulations repeal—

(a) this Part, and

(b) schedule 1.

Schedule 1

Infrastructure-levy regulations

(introduced by section 54)

General

1 In this schedule, “infrastructure-levy regulations” means regulations under section 54.

2 This schedule (apart from paragraphs 15(2) and 16) is without prejudice to the generality of the regulation-making power conferred by section 54.

3 Infrastructure-levy regulations may make incidental, supplementary, consequential, transitional, transitory or saving provision.

4 Any provision which infrastructure-levy regulations may make may be made by the regulations modifying another enactment.

Who is liable for what

5 Infrastructure-levy regulations may set out—

(a) the kinds of development in respect of which infrastructure levy is payable,

(b) who is liable to pay infrastructure levy in respect of a development,

(c) when liability to pay infrastructure levy in respect of a development arises, and

(d) the amount to be paid by way of infrastructure levy in respect of a development (“the payable amount”) either by—

(i) stating the amount, or

(ii) setting out how it is to be calculated.

Relief where relevant planning obligation

6 Infrastructure-levy regulations may make provision to grant relief from liability to pay infrastructure levy in respect of a development where—

(a) a planning obligation under section 75 of the Town and Country Planning (Scotland) Act 1997 has been entered into in respect of the development, and

(b) the planning authority in respect of the development considers that to require payment of infrastructure levy in respect of the development would constitute a duplication in any form of contribution by the person who is liable to pay infrastructure levy.

Local exemptions and discounts

7 Infrastructure-levy regulations may—

(a) confer on local authorities the power to waive or reduce infrastructure levy in respect of development in their areas, and

(b) set conditions on the exercise of any power so conferred.

Collection and enforcement

8 Infrastructure-levy regulations may—

(a) make provision about the collection of—

(i) payable amounts, and

(ii) penalties imposed by virtue of paragraph 9,

(b) enable local authorities to confer—

(i) powers of entry (except in relation to a dwelling-house) for the purpose of investigating liability for infrastructure levy, and

(ii) powers to seize things found in the course of investigating liability for infrastructure levy,

(c) make it an offence to evade, or reduce liability to pay, infrastructure levy (or attempt to do so) by—

(i) withholding information,

(ii) providing information that is false or misleading,

(iii) otherwise obstructing the investigation of someone’s infrastructure-levy liability, or

(iv) causing another person to do any of those things.

Financial penalty for late payment

9(1) Infrastructure-levy regulations may allow, or require, local authorities to charge a financial penalty if the payable amount is not paid within a period specified in the regulations.

(2) The regulations may, in particular, provide for the charging of—

(a) a penalty of a specified amount (or amounts),

(b) a penalty that is calculated periodically as a proportion of the payable amount, or

(c) both kinds of penalty.

Stopping development

10(1) Infrastructure-levy regulations may—

(a) empower a local authority to direct that the carrying out of development stop until there has been payment in full of—

(i) the payable amount, and

(ii) any financial penalty imposed in connection with the development by virtue of paragraph 9, and

(b) prescribe the consequences of not stopping development when directed to do so.

(2) The regulations may, in particular, make it an offence not to stop development when directed to do so.

Remission and repayment

11 Infrastructure-levy regulations may provide for the remission or repayment (with or without interest) of the whole or part of—

(a) the payable amount, and

(b) any financial penalty imposed by virtue of paragraph 9.

Appeals

12 Infrastructure-levy regulations may—

(a) establish a process for appealing against a decision—

(i) that infrastructure levy is payable, or

(ii) about what the payable amount is,

(b) provide that such an appeal is to be made to—

(i) the Scottish Ministers, or

(ii) a person appointed by them,

(c) enable the person to whom such an appeal is made to set rules (or further rules, in addition to those set by the regulations) about the conduct of the appeal,

(d) in respect of such appeals—

(i) prescribe fees, and

(ii) make provision allowing expenses to be awarded.

Accounting requirements

13(1) Infrastructure-levy regulations may make provision about the accounts that local authorities are to keep in connection with—

(a) the exercise of their functions under infrastructure-levy regulations, and

(b) their expenditure of infrastructure-levy income.

(2) In sub-paragraph (1), “infrastructure-levy income” includes monies collected as financial penalties imposed by virtue of paragraph 9.

Expenditure of levy income

14(1) Infrastructure-levy regulations may make provision about the particular purposes for which local authorities may apply infrastructure-levy income.

(2) In sub-paragraph (1), “infrastructure-levy income” includes monies collected as financial penalties imposed by virtue of paragraph 9.

Use of planning and development powers

15(1) Infrastructure-levy regulations may make provision about how any of the following powers may or may not be exercised—

(a) section 75 of the Town and Country Planning (Scotland) Act 1997 (planning obligations),

(b) section 53 of the Roads (Scotland) Act 1984 (agreements as to use of land near roads),

(c) any other power relating to planning or development.

(2) But provision of the kind mentioned in sub-paragraph (1) may be made only if the Scottish Ministers consider it necessary or expedient for the purpose of—

(a) enhancing the effectiveness of infrastructure levy as a means of raising revenue to fund, or contribute towards funding, infrastructure projects, or

(b) preventing or restricting the use of powers, other than the power to charge infrastructure levy, in circumstances in which the Ministers think using the power to charge infrastructure levy would be more appropriate.

Maximum penalties

16(1) The maximum penalty that infrastructure-levy regulations can specify for an offence they create is—

(a) for a summary-only offence—

(i) a fine not exceeding level 5 on the standard scale,

(ii) a term of imprisonment not exceeding 12 months, or

(iii) both,

(b) for an either-way offence—

(i) a fine, which may not exceed the statutory maximum on summary conviction,

(ii) a term of imprisonment not exceeding—

(A) 12 months on summary conviction,

(B) 2 years on conviction on indictment, or

(iii) both.

(2) In sub-paragraph (1)(b), “either-way offence” means an offence that is triable either on indictment or summary complaint.