Exceptional Circumstances Relief - Public forum - Planning Advisory Service (PAS)

I've been researching this issue too, and so far have not found one LPA who has set any local criteria for exceptional relief. 

Thanks Daniel,I guess it all still comes down to the fact that the underlying reason for seeking 'developer contributions' in the first place (S106, CIL, Conditions) is to put towards mitigating the impacts of the development on infrastructure and services etc. (the very things we are still using to judge the grant of ECR upon)? In reality we tend to only ever be partially successful at mitigating the short-term impacts of development and are less better at the longer-term stuff (local gov. normally ends up, for example, adopting assets which fall to the tax payer to fund over time). 

If the grant of relief effectively amounts to a reduction in the overall contribution, the key challenge will be to agree what still needs to be mitigated for and what that equates to in financial terms? It could be risky simply to stipulate that you will grant relief if the development 'contributes to the delivery of identified community priorities' without being more explicit as to how much that contribution should be? I understand we need to be pro-growth (although logic dictates it cannot be sustained indefinitely), but we should only grant permission for development which does not mitigate its impacts to the point where it is acceptable in planning terms, if it delivers sufficient benefits which balance out the effects on infrastructure and services etc.? The only things which could do this, in my opinion, are bringing forward benefits which are needed now but may not be realised in the current economic climate for some time to come e.g. employment opportunities, enhanced amenity/environment etc. The benefit of securing these now, rather than in say 10 years time, would have to outweigh the costs we would theoretically have sought to mitigate for as part of a standard planning agreement.

Thanks Daniel, forgive me for my dogged persistence with this topic, but i find it both interesting and important.

If one was to agree relief on the basis of delivering something not already identified as part of the 'Local Plan' (in its broadest sense), i would suggest it would have to be backed up with a robust explanation and demonstration that it delivers added value over and beyond that which carries material weight in a planning decision which balances out the negative impacts of the development that the Planning Authority is tasked with addressing as part of the planning process.

Assuming that any request for relief would come post the granting of planning permission (potentially also including a package of S106 Obligations) it is something which is considered after the traditional planning process has run its course (apart, of-course, from following up on obligations, sticking to a timetable and discharging conditions etc.).

One of the problems I think is that planning permissions are being considered and granted on the assumption that a CIL payment will be forthcoming. If ECR is subsequently granted it is effectively compromising the principles upon which the planning permission was granted. Therefore, I would argue that by granting ECR one is effectively compromising the principles underpinning the process of managing development through the planning system. However, I find it hard to come up with many examples of things which don't carry material planning weight which could be considered reasonable compensation for a discounted CIL payment? I keep coming back to the case of neutral/zero profit regeneration development as the only example I can think of?

In order to be compliant with the Regulations, once the s.106 hurdle has been got over, the LPA just has to consider it to be "expedient" to grant relief. The judgement as to what is expedient is left totally to the LPA.

I would have thought it it would be better not to attempt to develop a policy that may fit all circumstances but to judge each application on its particular merits.

Daniel, I would have thought that it would be reasonable to grant relief for purely financial reasons. Viability studies are, by their very nature, broad brush approaches and will not cover all possible development situations. For example, a brown field site being developed for housing that has exceptionally  high demolition and clean up costs may be considered as being suitable for relief.

Having said all the above, I am glad that my authority has resolved to to offer ECR! 

Hi all,

I have just finished drafting our ECR policy and thought I would attempt to provide some more specific advice on how we might deal with applications.

Firstly I have thought about how we may restrict the number of applications for which the value of the S.106 would exceed CIL in order to avoid needed to deal with an excessive number of applications. I am not aware of any advice on how one might attibute a value to complying with the S.106 but have made the following statement as to how we might:

"When calculating the cost of complying with the S.106 no value will be attibuted to the provision of affordable housing or On-Site infrastructure as defined in Chapter 28 of our Core Strategy" (that needed to enable the development to be built and occupied (e.g access roads, foul drainage sewers)

It appears logical to me to exclude the cost of Affordable Housing as we have already adjusted the CIL rate to account for the delivery of Affordable Housing in accordance with our Core Strategy. Our draft Reg.123 list obviously limits the other elements for which S.106 may be charged.

I also state that ECR will only be available where:

a) it can be demonstrated that the requirements of the S.106 provide items of infrastructure which have been identified as essential infrastructure within the Council's annual Infrastructure Business Plan (a rolling three year programme of infrastructure upon which we will allocate CIL) or

b) the infrastructure item secured via the S.106 has been identifed as being neccessary to support development in a Development Plan Document or Supplementary Planning Document or

c) the  chargeable development would constitute a large scale major development (definition from PS2)

Any views on our approach would be appreciated.

Robert

Robert,

The CIL Regs do not allow you to cherry pick which elements of a s.106 you will take into account. An applicant for relief has to provide with their application, (together with other things) an independant assesment of the cost of complying with the requirements of the s.106.

As Gillian points out there shouls not be any requirements in s.106 agreements that do not meet the tests. 

Tony,

Thank you for your comments. Although I appreciate the need for the value of complying with a S.106 to be independently assessed (and indeed would encourage this given a lack of in house expertise in delivering certain infrastructure items), I struggle to locate any guidance as to how this assessment should be undertaken by independent persons or what may be included in the assessment. Is there are role for the Charging Authority in providing guidance thereon or does this go beyond the scope of the Regulations?

We limit the content of our S.106 to those items which meet the tests and will need to be even more careful when drafting legal agreements in the near future. I can, however, see scenarios where the "S.106 cost" could easily exceed the CIL charge without neccessarily being "exceptional" (particularly if the cost for providing affordable housing are included). The concern remains that for every ten ECR applications only one may be appropriate unless we clarify how we might consider the "cost of complying" and "unacceptable impact" on economic viability.

In my view, it is arguable that these items should be included in your ECR policy.

Robert

Robert,

As far as I am aware, there is no detailed governmental guidance on the issues that are concerning you. The DCLG guide "Community Infrastructure Levy Relief - Information Document" of May 2011 only takes a broad brush approach and does little more than reiterate the relevant parts of the Regulations. 

You are therefore left with a literal interpretation of what the Regulations say and, in my view, Reg. 57(4)(d)(i) is quite clear. The independant person must carry out an assesment of what the total costs of complying with all the requirements of the s.106 would be.  The applicant will therefore need to appoint an independant person who is capable of carrying out that sort of assesment.

The case that is put by the claimant re the impact on economic viability will probably be the most important part of the claim. If a convincing case is put showing that the payment of CIL in addition to complying with the s.106 requirements would make the proposed development unviable then relief should be granted. 

As I said in my original post in this thread, I would have thought that it would be better to deal with each claim on its own merits rather than try to draft a policy which would be equally applicable in what may be a wide variety of corcumstances. 

I am aware that it's easy for me to say all the above as my authority decided not to offer ECR!   

Hello

Did anyone end up putting in place local criteria? We are putting in an ECR policy and I (along with our Cheif Exec and Members) are concerned that any decisions are auditable and defendable. There's no grounds for Appeal on an ECR decision in the Regs, but I'm assuming JR could apply? Any info anyone has on how the decision was made would also be useful i.e. was it a specific manager or do you have a forum. Also, given that CIL is a material consideration, would a decision to grant ECR need to go back to DM committee if it was not originally granted under delegated powers?

Thanks, Rebecca.