Regulation 122 and 123 of the Community Infrastructure Levy Regulations 2010 place limitations on the use of planning obligations (also called section 106 agreements) to fund infrastructure when a charging authority has adopted a CIL. The limitations are complex and their application has been debated in the courts. The pooling restriction in particular impacts the number of developments that can have planning obligations and requires alternative approaches like using CIL, Grampian conditions, or other local government powers to deliver necessary infrastructure. Highway agreements are excluded from some of the CIL limitations on planning obligations.

1. Section 106 obligations and CIL limitations
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2. Regulation 123 limitations and
planning obligations
Christopher Cant

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

8. Regulation 122
 Administration and monitoring fee
Oxfordshire CC v Secretary of State

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) . . ..

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

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

16. Variation of Infrastructure list
Ability
Procedure
Incorrect use of ability
Worry for developers

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

24. www.9stonebuildings.com