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Christopher Cant S106 presentation

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Christopher Cant S106 presentation

  1. 1. Section 106 obligations and CIL limitations www.9stonebuildings.com
  2. 2. Regulation 123 limitations and planning obligations Christopher Cant
  3. 3. Problems  Pooling restriction even if no Charging Schedule  Funding deficiencies  Limitations not simple or straightforward  Complicated construction issues  Impact on number of developments
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. Regulation 122  Administration and monitoring fee Oxfordshire CC v Secretary of State
  9. 9. Regulation 122 Infringement not defence to enforcement R (oao Robert Hitchins Limited) v Worcestershire R (oao Millgate Development Ltd) v Wokingham BC
  10. 10. Regulation 123 limitations General pre-conditions  Reason for grant of planning permission  Infrastructure  Community infrastructure  Funding or provision of infrastructure
  11. 11. 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) . . ..
  12. 12. Infrastructure Facilities R (on the application of Keating) and others v Cardiff Local Health Board [2005] EWCA Civ 847
  13. 13. Funding or provision of infrastructure (i) Natural meaning; or (ii) Limited to provision of infrastructure but not improvement etc
  14. 14. 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.”
  15. 15. 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
  16. 16. Variation of Infrastructure list Ability Procedure Incorrect use of ability Worry for developers
  17. 17. Pooling restriction  Pooled contributions important aspect of funding R 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
  18. 18. 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”.
  19. 19. 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
  20. 20. Pooling restriction Impact on planning applications  Required planning obligations prohibited  Refusal stopping piecemeal approach resulting in infrastructure shortfall Abbey Place planning appeal  Use of Grampian conditions  Obligation to deliver infrastructure
  21. 21. Hybrid approach Torbay draft charging schedule  Large residential development no CIL  Small residential development no section 106 obligations
  22. 22. 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
  23. 23. Highway Agreements  Relevant Infrastructure planning conditions need for liaison excluded agreements  Pooling restriction – not apply
  24. 24. www.9stonebuildings.com

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