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. 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. 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. 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. 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
9. Regulation 122
Infringement not defence to enforcement
R (oao Robert Hitchins Limited) v
Worcestershire
R (oao Millgate Development Ltd) v
Wokingham BC
10. Regulation 123 limitations
General pre-conditions
Reason for grant of planning permission
Infrastructure
Community infrastructure
Funding or provision of infrastructure
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) . . ..
13. Funding or provision of
infrastructure
(i) Natural meaning; or
(ii) Limited to provision of infrastructure but not
improvement etc
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. 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
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. 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. 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. 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. Hybrid approach
Torbay draft charging schedule
Large residential development no CIL
Small residential development no section
106 obligations
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. Highway Agreements
Relevant Infrastructure
planning conditions
need for liaison
excluded agreements
Pooling restriction – not apply