s123: Further limitations on use of planning obligations - Public forum - Planning Advisory Service (PAS)

From the 6^th 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 6^th 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.