CIL and s106 tariffs - Public forum - Planning Advisory Service (PAS)
CIL and s106 tariffs
Andrea King, modified 10 Years ago.
CIL and s106 tariffs
Enthusiast Posts: 76 Join Date: 19/08/13 Recent PostsMonday morning question...
Please could anyone help overcome some confusion and clarify whether you can still apply existing s106 tariff-based charges once you've got a CIL adopted?
Clearly, (other than site-specific s106 infrastructure enhancements and affordable housing), you can't charge current s106 tariffs (for things like strategic road improvements and children's play areas) in an area that falls within a CIL charging zone as that would be double-counting, but can those negotiable s106 tariffs still be applied to developments in other parts of a borough that aren't within a CIL charging zone once the CIL is adopted, as long as those s106 funds aren't used to pool towards infrastructure specifically identified in the Reg.123 list as to be funded by CIL (which would also be double-charging)? Or would the adoption of a CIL render all current s106 tariff-based charges redundant? It seems some LAs think you can still charge s106 tariffs once a CIL is in place, and others think you can't have both!
We've currently got an SPD on Planning Obligations and Agreements which sets out our tariff-based charges for drawing in s106 monies to pool for strategic highways infrastructure, children's plan areas and playing fields, and were envisaging these charges would become defunct upon adoption of a CIL such that a parallel SPD review would be necessary. However, if it's possible to still charge those negotiable s106 tariffs in parts of the borough not otherwise covered by a CIL charging zone, then the SPD could arguably remain valid.
Charlene Jones, modified 10 Years ago.
CIL and s106 tariffs
New Member Posts: 22 Join Date: 30/08/13 Recent PostsPAS advice here would be helpful - but the pooling applies to infrastructure as defined (which it isn't really) under the Planning Act 2008 - so applies to the whole Borough regardless of whether you have a Charging Schedule or not from April 2015. The Regulation 123 list is just to stop double-dipping of S106 (and soon S278) with CIL.
Another question would be, is this a running total of 5 contributions? If you've spent your first five contributions and discharged the Section 106s towards, e.g. Education, then presumably you just start the clock again? One thing you can keep pooling (as it's explicitly excluded from the Planning Act infrastructure defintion) ad infinitum would be affordable housing.
As Councils are taking such different views, it would be interesting to know if DCLG will be carrying out any kind of enforcement to ensure that Councils keep to the Regulations on pooling 5 S106s?
Sorry, more questions than answers.
When the Cil regs 2010 came in the legal requirement for all s106 contributions to meet the tests including being 'necessary', changes the tariff position. Although few have been challenged. Local authorities should be sure that all the requirement of the tariff relate to the development in question.
In terms of pooling of more than 5 s106 obligations, that stops for types of infrastructure or projects from April 2015 ( subject to reg changes) or when you adopt a CIL whichever is first. So everyone will be affected from April 2015. So, when you get a CIL adopted ( or April 2015) your use of s106 should only be related to the mitigation of the development and cannot include pooling of 5 or mores106 obligations for a type of infrastructure or project ( and this pooling dates back to 2010). This is a one off- 5 - you don't get it again once you have spent the money collected from that 5. So if you have already had 5 obligations ( or 20) which state for 'education' you cannot have any more for 'education' when you have your CIL or April 2015 whichever the sooner ( presuming the regs are laid). You can be specific about projects but again can only have 5 pooled.
If an authority adopt a CIL they adopt it for their whole administrative area. They may have a zero rate but they still have a CIL. So the pooling restriction applies to the whole area from the adopting of a CIL or April 2015 whichever is sooner.
The purpose of the reg 123 list is to tell the world what you will spend your CIL on ( and therefore what you won't collect s106 for). The way this list is developed and the guidance you might develop to go alongside this, will be very important to the effective operation of CIL and providing contributions to infrastructure.
As has been said affordable housing is not covered by the pooling limitations on infrastructure.
In terms of enforcement - DCLG will not get involved but I am sure the development and house building industry will. Not to mention the Council's own auditors.
I hope this helps
Andrea King, modified 10 Years ago.
CIL and s106 tariffs
Enthusiast Posts: 76 Join Date: 19/08/13 Recent PostsThanks Gilian and Charlene, that's useful, tho still a tad confusing! Ignoring the fact that if you don't have a CIL by Apr.2015 then the s106 tariff pooling restrictions apply (that's simple), the key point I'm trying to clarify is once you've got your CIL in place (whenever that may be) whether or not you can still apply s106 tariffs (and thus pool up to 5 contributions for non-CIL funded infrastructure) in areas with a nil CIL rate? I understand the CIL applies to the whole area and nil rate areas still essentially have a CIL in a sense, but as long as no double-dipping takes place can any reasonable 'necessary' s106 tariff charges still be applied in those nil rate areas with monies pooled from up to 5 developments to fund infrastructure not otherwise specified to be funded from the CIL as set out in its Reg.123 list?
Paragraph 87 of the April 2013 CIL guidance is relevant. Essentially you need to be clear about what you will be charging s106 and what you will be putting on the Reg 123 list to fund through CIL. You need to meet the s106 tests in the CIL regulations.
I cannot see how you can have a tariff - and it meet the s106 tests and not be pooling more than 5 - it would be a limited tariff. Essentially not a tariff more site specific s106 requirements - that are envisaged by the regs and the guidance. The aim of the regs and guidance etc is to push strategic infrastructure ( not site mitigation) to the CIL, avoid double dipping, and for everyone to be clear about the Councils approach to developer contributions.
Andrea King, modified 10 Years ago.
CIL and s106 tariffs
Enthusiast Posts: 76 Join Date: 19/08/13 Recent PostsThanks Gilian, much appreciated!