Re: Do the pooling rules apply to a specific project or to a site? - Public forum - Planning Advisory Service (PAS)

I would say it depends on how specific the project is defined in the legal obligation. So being specific is good for being able to pool up to 5 for different projects within the country park - but be careful you don't have to hand it back as you cannot execute the 'specific' project.

But what if the different projects in different locations of the country park (or even within your local authority area) were for the same type of infrastructure? Presumably you could not then fund them. Has anyone any idea how you define type of infrastructure and apply this eg once you have pooled 5 Sec 106's to provide a cycleway in one part of the district could you then use the next (ie the sixth) Sec 106 money to do another cycleway in another separate part of the district OR forever and a day can you not use Sec 106 money to do cycleways in your area? Surely that can't be right can it? Same could apply to POS provision? Any help on this interpretation would be useful.

I think it all comes down to how you define the project in the Obligation as Gilian points out. If you were very careful I would think you could even break a scheme into constituent parts and pool contributions for each part e.g. a large linear highways scheme could be broken down (say between junction x and junction y) and you could then apply up to 5 contributions to that part, leaving you free to apply a seperate set of up to 5 pooled contributions to another section (say junction a to b). I would guess that on the flipside, being so prescriptive could constrain you and put you at risk of being unable to spend the money...again as Gilian points out in her post...

Another related question - if you've already collected 5 pooled contributions for generic 'public open space', can you then collect another 5 for a specific public open space project?

As a matter of interest, do LPAs obtain legal opinion on the lawfulness of the obligations contained within the agreements they draft? If they can be proven to be unlawful the LA can be left wide open to claims for vast sums of money they can't find. And don't expect your insurance to pay out either.

It might be helpful to simply ask if a developer is likely to regard the treatment as fair. The sense of the rules is that you shouldn't double count. If as a developer I think that you are bending the rules in this respect then I am much more likely to challenge you, notwithstanding any semantic spin in the small print. In particular my sense is guess that developers are becoming increasingly resistant to any use of S106 to fund generic requirements that are not directly related to their own scheme.

The latest dec 2012 guidance attempts to clarify (or re-interpret) this issue to avoid 'double dipping' The guidance now states that where a generic item of infrastructure is included in the R123 list, planning obligations for a specific item which would fall within this category of infrastructure should not be sought. Apart from the question of whether this is consistent with the regulations, it does not help with the issue of breaking down obligations into distinct individual projects. The question for the LPA is firstly whether the obligation can meet the 3 statutory tests, and secondly whether there is going to be such a potential number of applications/obligations likely to arise to make it worth the hassle! Graham Jones POS CIL coordinator

[quote=Philippa Gibbon]Another related question - if you've already collected 5 pooled contributions for generic 'public open space', can you then collect another 5 for a specific public open space project?[/quote]

 

Just wondering whether anyone had got an answer to Philippa's question?

This clearly remains one of the more vexed questions still hanging over practitioner's interpretation of the CIL Regs and accompanying advice. It doesn't seem credible that the government intended to create wriggle room for inventive interpretations of the term 'piece or type' of infrastructure. Nevertheless, my Council would certainly benefit from a definitive clarification of the matter. If, by always referring in S106 agreements to site specific terminology in the description of pieces of infrastructure and conversely, avoiding the use of generic or types of infrastructure as a descriptive term LPAs can work round the 'no more than 5' restriction, I for one would welcome the comfort of knowing that such terminological creativity will run little risk of punishment by legal challenge further down the road. A definitive legal interpretation of the implications for S106 drafting would be greatly appreciated.

Brian Sheasby

Brian,

 "A definitive legal interpretation of the implications for S106 drafting" can, by definition, only be provided by the Courts. A planning lawyer will only be able to give their opinion on the interpretation of the Regulation. My opinion, and I was a planning lawyer for c25 years, is that  the intent of Reg 123 is quite clear and that "creative" wording of s.106 planning obligations carries with it the risk of challange.

My view is that you can be specific and pool 5 contribution for say 'extension to Smith Street school' - it is clear that this is a project, therefore meets the requirements of the regs. The regulations state 'that project, or type of infrastrucuture' 

I recommend anyone seeking or offering advice on the vexed question of restrictions on pooling contributions to read Christopher Cant's (updated) CIL Guide under the CIL, S106, Viability & Growth Forum which he has helpfully signposted. Access it via the link under Christopher Cant on the Chambers website. He expresses clear concerns about the lack of 'real guidance' in the regulations, (or subsequent government advice for that matter), predicts 'a  bonanza for lawyers and surveyors' and rightly draws attention to the potential implications for local authority finance. I remain unconvinced as to clarity of the regs and guidance on the matter of pooling. We at least have a barrister's opinion here and one that seems to take the form of a circumspect health warning.

Brian Sheasby 

I recommend anyone seeking or offering advice on the vexed question of restrictions on pooling contributions to read Christopher Cant's (updated) CIL Guide under the CIL, S106, Viability & Growth Forum which he has helpfully signposted. Access it via the link under Christopher Cant on the Chambers website. He expresses clear concerns about the lack of 'real guidance' in the regulations, (or subsequent government advice for that matter), predicts 'a  bonanza for lawyers and surveyors' and rightly draws attention to the potential implications for local authority finance. I remain unconvinced as to clarity of the regs and guidance on the matter of pooling. We at least have a barrister's opinion here and one that seems to take the form of a circumspect health warning.

Brian Sheasby