Section 106 obligations and CIL limitations

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Regulation 123 limitations and planning obligations

Christopher Cant

Problems

Pooling restriction even if no Charging Schedule

Funding deficiencies

Limitations not simple or straightforward

Complicated construction issues

Impact on number of developments

CIL limitations

Regulation 122 limitation to site specific

Regulation 123(2) – not fund or provide relevant infrastructure

Regulation 123(2A) – restrictions on planning conditions relating to highway agreements

Regulation 123(3) – pooling restriction

Regulation 122

(a)     necessary to make the development acceptable in planning terms;

(b)     directly related to the development; and

(c)     fairly and reasonably related in scale and kind to the development

Regulation 122

Reaction of Courts

Persimmon Homes North Midlands v Secretary of State

Welcome Break Group v Stroud DC

Smyth v Secretary of State

Oxfordshire CC v Secretary of State

Regulation 122

Reason for planning being granted

R (oao Savage) v Mansfield DC

Derwent Holdings Limited v Trafford BC

Composite development

R(oao Campaign to Protect Rural England) v Dover DC

Regulation 122

Administration and monitoring fee

Oxfordshire CC v Secretary of State

Regulation 122

Infringement not defence to enforcement

R (oao Robert Hitchins Limited) v Worcestershire

R (oao Millgate Development Ltd) v Wokingham BC

Regulation 123 limitations

General pre-conditions

Reason for grant of planning permission

Infrastructure

Community infrastructure

Funding or provision of infrastructure

Infrastructure

“infrastructure” includes—(a)     roads and other transport facilities,(b)     flood defences,(c)     schools and other educational facilities,(d)     medical facilities,(e)     sporting and recreational facilities, [and](f)     open spaces. . .(g)     . . ..

Infrastructure

Facilities

R (on the application of Keating) and others v Cardiff Local Health Board [2005] EWCA Civ 847

Funding or provision of infrastructure

(i) Natural meaning; or

(ii) Limited to provision of infrastructure but not improvement etc

Application of CIL monies

Regulation 59(1)

“A charging authority must apply CIL to funding [the provision, improvement, replacement, operation or maintenance of] infrastructure to support the development of its area.”

Relevant Infrastructure

Double dipping

Distinction type of infrastructure/ project of infrastructure

What is covered by type of infrastructure – generic or sub-classes permitted

Validity of exceptions

Variation of Infrastructure list

Ability

Procedure

Incorrect use of ability

Worry for developers

Pooling restriction

Pooled contributions important aspect of fundingR v South Northamptonshire DC Restriction to encourage introduction of CIL

Holgate J. in West Berkshire DC v Department for Communities and Local Government

Paterson J. in Smyth v Secretary of State

Regulation 123(3)

(a) Obligation provides for funding or provision of infrastructure project or type of infrastructure;

(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”.

Pooling restriction

Obligations not relating to infrastructure Obligations and not agreements Duplication of obligations Unimplemented planning permissions included Zero-rated zones Time expired planning permissions Infrastructure projects – scope of Verification of limit

Pooling restriction

Impact on planning applicationsRequired planning obligations prohibited Refusal stopping piecemeal approach

resulting in infrastructure shortfallAbbey Place planning appeal

Use of Grampian conditionsObligation to deliver infrastructure

Hybrid approach

Torbay draft charging schedule

Large residential development no CIL

Small residential development no section 106 obligations

Alternative powers

Section 111 Local Government Act 1972

Section 16 Greater London Council (General Powers) Act 1974

Section 33 Local Government (Miscellaneous Provisions) Act 1982

Section 1 Localism Act 2011

Highway Agreements

Relevant Infrastructure planning conditions need for liaisonexcluded agreements

Pooling restriction – not apply

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