Limitations on use of pooled s106 contributions - Public forum - Planning Advisory Service (PAS)
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En cours - juillet 2012
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Dernière modification - May
Limitations on use of pooled s106 contributions
If an LPA has entered into more than 5 s106 agreements involving financial contributions to a project or type of infrastructure since 04/10 and before it adopts CIL or 04/14, while it is clear from the Regs that it may not enter into any further s106 agreements requiring financial contributions in connection with that project or type of infrastructure, I am unsure if it may still continue to collect financial contributions from those s106 agreements it entered into previously?
Yes, an LPA can continue to collect contribution. The Regs in effect only limit when LPAs can enter into section 106 agreements. The Regs don't have an impact on completed ones.
Bear in mind of course that the "no more than 5" rule is for planning obligations (rather than agreements). The agreement is the instrument which contains the obligations and a single agreement is likely to have a number of obligations. You can also have more than 1 obligation for a specific payment and many agreements contain a positive obligation to pay, with a matched prohibition on development until the sum is paid. So is that 2 obligations?
More guidance is needed but I can not think of any sensible reason why the '5 obligation' rule would not be interpreted to mean 5 separate payment obligations, or 5 separate payments in kind. The precise way in which these are enforced in terms of the detailed drafting of the s106 would not affect the overall tally.
I'm seeking further clarification on practical effect of the limitations on s106 obligations. In the circumstances where a charging authority has not yet adopted a CIL charging schedule can it continue to enter into as many planning obligations involving pooled financial contributions as it wishes up until either a. it adopts its charging schedule, or b. April 2014? In other words, does the limit of 5 obligations only come into effect at points a. or b? I understand of course that any obligations entered into would have to satisfy the circular 05/05 tests.
The authority can continue to enter into as many pooled contribution obligations as it may wish ( subject to them complying with the regs and circular) until such time as they have adopted their CIL charging schedule or April 2014 - whichever is the earlier. The reality is that it may continue to receive contributions from these s106s for years after they have adopted a CIL or April 2014 depending on the triggers. It is only after the LPA has an adopted CIL or April 2014 that the authority needs to consider at how many more pooled contributions( if any) it has left out of the limit of 5 since April 2010 and thereore whether it can enter into any further s106 for those projects.