Regulation 123 - large sites & exclusions - Public forum - Planning Advisory Service (PAS)

I asked a similar question the other day and was told that in theory you could do this. I strongly suspect that you would need to be careful with this though and not do it all the time, as developers may start to challenge. I also suspect that it will be easier to switch something from S106 to CIL than the other way around. As you suggest, probably the best thing if you know that certain large sites are coming forward would be to exclude that particular school from your 123 list - bearing in mind the risk this brings in that S106 items are negotiable (to a point) and that CIL contributions are not.

I think you'd need to be careful doing this as you can't 'double charge' developers for the same item of infrastructure. You can be clever about the wording of the Regulation 123 list to ensure that you have maximum flexibility for use of Section 106. For example a) you can include 'education' in your Reg 123 list which would mean any funding for schools would come through CIL, none through S106 b) you can include 'education except school X' in your Reg 123 list which would mean funding for all schools would come through CIL, except for school X which could be funded through S106 (this would be good for a strategic site for example) c) or you can include 'school X' in your Reg 123 list which would mean funding for school X only would come from CIL, and funding for all other schools would be through S106. In Derbyshire we are pursuing the last option - where we know a new school is needed or improvements to an existing school are needed, we are looking for these to be identified in the Reg 123 list. We will seek all other improvements as and when they are required through S106. This gives us the ability to account for 'planned' growth through CIL, and also to react to 'unplanned' growth and ad hoc planning applications. What I don't think you can (or should) do is try and fund improvements through both CIL and Section 106 - this would be unfairly charging developers twice. So you can't have School X on your Reg 123 list and then later ask for a Section 106 for it.

A late addition to the discussion. I think that whether or not you choose to fund primary schools trhough S106 or CIL is primarily a tactical issue. It would be quite ok to specifically exclude schools on named large sites from your 123 list. But you should check that the added cost is reflected in any viability study that you do that covers the economics of developing larger sites. From a developer's point of view there are advantages in providing the school yourself. You know that you will get it when you need it, and don't have anyone else's contractors messing about on your site.

One of the main reasons to fund schools through CIL is the significant reduction in CIL rates that would be needed to take account of S106 provision on larger sites. In very round figures if a school costing c£5m is needed from c800 dwellings (which equates to c500 market dwellings) then the reduction on CIL rates is £10,000 per dwelling! So for mist places this basically reduces CIL to negligable to zero. You could potentially exclude a site from CIL if it has large S106 requirements but in an area with lots of growth you might end up with quite a few excluded sites - rather undermining the logic of CIL. On the issue of schools being built by developers, I think that under current procurement rules this is probably very difficult to impossible, as competitive tendering is required (NB this is a procurement problem not a CIL problem). This is further complicated by the LEA no longer being the provider of schools.