RE: s123: Further limitations on use of planning obligations - Public forum - Planning Advisory Service (PAS)
RE: s123: Further limitations on use of planning obligations
From the 6th of April 2015, for all authorities in the country other than the 57 who have adopted CIL, s123 of the CIL Levy Regs 2010 as amended will place significant restrictions on the securing of s106 contributions.
The pooling of more than 5 contributions which provide for the funding or provision of a particular project, or provide for the funding or provision of a particular type of infrastructure, is restricted from this date on. This is backdated to include all obligations which have been entered into since the 6th April 2010.
E.g. It appears that if an authority has, since the 6th April 2010, secured 5 or more contributions towards a pooled fund for educational provision, it will not be able to do so again after the 6th of April 2015.
The impacts of this would appear to be wide ranging. I wonder if there are any thoughts on this or if it is known whether DCLG plan issue further guidance on this matter, as I can forsee a lot of discussions ahead on which contributions would or would not comply with this new restriction.
S123 in full:
Further limitations on use of planning obligations
123.—(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may not constitute a reason for granting planning permission for the development to the extent that the obligation provides for the funding or provision of relevant infrastructure (including, subject to paragraph
(2B), through requiring a highway agreement to be entered into).
(2A) Subject to paragraph (2B) a condition falling within either of the following descriptions may not be imposed on the grant of planning permission—
(a) a condition that requires a highway agreement for the funding or provision of relevant infrastructure to be entered into;
(b) a condition that prevents or restricts the carrying out of development until a highway agreement for the funding
(2B) Paragraphs (2) and (2A) do not apply in relation to highway agreements to be entered into with—
(a) the Minister, for the purposes of section 1(1) of the 1980 Act77; or
(b) Transport for London.
(3) Other than through requiring a highway agreement to be entered into, a planning obligation (“obligation A”) may not constitute a reason for granting planning permission to the extent that—
(a) obligation A provides for the funding or provision of an infrastructure project or provides for the funding or provision of a type of infrastructure; and
(b) five or more separate planning obligations that—
(i) relate to planning permissions granted for development within the area of the charging authority; and
(ii) which provide for the funding or provision of that project, or provide for the funding or provision of that type of infrastructure, have been entered into on or after 6th April 2010.
In this regulation—
“the 1980 Act” means the Highways Act 198078;
“charging authority” means the charging authority for the area in which the development will be situated;
“condition”, in relation to a planning permission, has the same meaning as in section 70(1)(a) of TCPA 1990;
“funding” in relation to the funding of infrastructure, means the provision of that infrastructure by way of funding;
“determination” means a determination—
(a) under section 70,73, 76A or 77 of TCPA 1990 of an application for planning permission which is not an application to which section 73 of TCPA 1990 applies, or
(b) under section 79 of TCPA 1990 of an appeal;
“highway agreement” means an agreement under section 278 of the 1980 Act79;
“planning obligation” means a planning obligation under section 106 of TCPA
1990 and includes a proposed planning obligation but does not include a planning obligation that relates to or is connected with the funding or provision of scheduled works within the meaning of Schedule 1 to the Crossrail Act 2008;
“relevant determination” means—
(a) in relation to paragraph (2), a determination made on or after the date when the charging authority’s first charging schedule takes effect, and
(b) in relation to paragraph (3), a determination made on or after 6th April 2015 or the date when the charging authority’s first
charging schedule takes effect, whichever is earlier; and
“relevant infrastructure” means—
(a) where a charging authority has published on its website a list of infrastructure projects or types of infrastructure that it intends will be, or may be, wholly or partly funded by CIL (other than CIL to which regulation 59E or 59F applies), those infrastructure projects or those types of infrastructure;
(b) except where paragraph (c) applies, where no such list has been published, any infrastructure; or
(c) in relation to any planning obligation requiring a highway agreement to be entered into or condition falling within paragraph (2A), where no such list has been published, no infrastructure.
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
I wrote a blog about this some months ago - https://planningadvisor.wordpress.com/2014/07/11/no-more-pooling-date-is-looming-thoughts-of-a-cil-anorak/
Also, there is a lot of 'stuff' on our web site about this from CIL seminars - http://www.pas.gov.uk/web/pas1/3-community-infrastructure-levy-cil/-/journal_content/56/332612/6251592/ARTICLE
And from S106 seminars - http://www.pas.gov.uk/web/pas1/events/-/journal_content/56/332612/6555532/ARTICLE
The quote from Steve Quartermain on this made a few months back was:
Essentially local authorities need to audit the s106 agreements that they have signed since April 2010 and then make sure that they do not enter into any more for that type of Infrastrcuture or project after next April (or when they adopt a CIL).
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Thanks Gilian.
One thing I find odd is that the 5 contributions you can secure, could end up being attached to developments which do not actually happen, so the authority won't get any money. In the meantime 5 more applications could come forward which the authority cannot secure contributions in association to, but these could be the 5 that actually get built out!
the idea of refusing PP on the basis that contributions cannot be secured due to s123 is interesting. Contributions should only be sought I make an unacceptable development acceptable, to I can see a logic to refusing a development in the basis that without the necessary contribution, the scheme is unacceptable in planning terms.
I do think some Government guidance prior to April would be very helpful. I can't imagine it was envisaged that PP would be refused on such grounds. Is the alternative LPAs granting unacceptable development, with the justification that it is only a lack of CIL plus s123 which has rendered the development unacceptable?
Charlene Jones, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
New Member Publications: 22 Date d'inscription: 30/08/13 Publications RécentesI think Jonathan's point is a pertinent one, because it would make more sense if it was five 'live' Section 106s, rather than five agreements. That way an Authority could have a rolling 'five' agreements once Section 106s were either spent, superseded or expired.
If the Authority has entered into 6+ agreements since April 2010, does that mean they have to pick their top five after April 2015?
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
This will become a big deal for many authorities soon. I am particularly interested in interpretations of 'obligation A provides for the funding or provision of an infrastructure project or provides for the funding or provision of a type of infrastructure'. there scope to make sure future obligations are written so that they are distinct from the five or more that might have already have been signed since April 2010. Whilst the first part of the regulation 'infrastructure project' could be disaggregated into quite distinct packages the 'type of infrastructure ' looks so general.
Any views on this would be appreciated as I am auditing my post April 2010 S106's and may need a way forward before CIL is implemented.
Daniel Hudson, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Advocate Publications: 121 Date d'inscription: 25/04/12 Publications RécentesNot just Local Authorities - If a development proposal causes harm due to infrastructure impacts, and these impacts cannot be addressed because of S106 limitations, the LPA will have no option but to refuse the application - and, until a CIL is in place, there will be absolutely nothing that anyone can do about it.
So the limit isn't in developers interests either. I suspect this will cut more ice with Government than anything LPAs say.
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
If the contributions are required to ensure the acceptability of the development, is there potential for the contributions to be offered up to the LPA under a Unilateral Undertaking? If the contributions required meet the relevant tests (neccessary etc.), and they are offered up to the LPA, rather than the LPA securing them through s106 agreement, would this be a potential soluition? Or would it be unlawful / contrary to s123 for the LPA to accept the contributions offered up under the Unilateral Undertaking?Daniel Hudson:Not just Local Authorities - If a development proposal causes harm due to infrastructure impacts, and these impacts cannot be addressed because of S106 limitations, the LPA will have no option but to refuse the application - and, until a CIL is in place, there will be absolutely nothing that anyone can do about it.
So the limit isn't in developers interests either. I suspect this will cut more ice with Government than anything LPAs say.
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Gillian - thanks for the advice on the point on the disaggregation of the project, although if the school playing field was a separate application to the school building that might work on one level but I then get confused that 'playing field' could be rightly construed as an 'infrastructure type' which many of us will have taken numerouos contribution for since April 2010. . All potentially very confusing.
The message is clear - get on with achieving CIL.
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
On a slightly different note, the PAS document “S106 vs S278 vs CIL- your approach” states:
There is much discussion about the definition of a planning obligation with respect to the pooling restrictions. For example, if an authority has already entered into more than 5 obligations for education, can it then enter into another obligation for a specific school? DCLG have clarified their view that this was within the rules and that the regulations were designed to stop double charging rather than restrict a council’s ability to deliver the infrastructure that is needed.
I asked PAS to refer me to the DCLG document that has seemingly clarified this issue to which the text refers. However, PAS confrimed that DCLG verbally expressed this view at a recent CIL event and that there was no written advice in this respect.
Could anyone shed any light on this?
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Thank you Gilian, I have asked DCLG for clarification and await a response.
On another more minor note, some unimplemented planning permissions with S.106s post-2010 will start to become time expired. I assume that those S.106s, for unimplemented development with expired planning permissions, will no longer count towards the 5 for the purposes of pooling.
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Former Member, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
Charlene Jones, modifié il y a 9 années.
RE: s123: Further limitations on use of planning obligations
New Member Publications: 22 Date d'inscription: 30/08/13 Publications RécentesI'm not a lawyer, but I think Section 106 agreements and unilateral undertakings are both planning obligations under Section 106 of the Town and Country Planning Act 1990 - and as planning obligations would fall under Reg 123.