Planners publish s.106 and CIL advice, urge authorities to prepare for April 2014

Local planning authorities need to take action now to prepare for April 2014 when the use of ‘pooled’ s.106 contributions will be limited, the Planning Officers’ Society has warned.

Publishing a revised advice note entitled Section 106 Obligations and the Community Infrastructure Levy earlier this month, the POS said the levy would have significant implications for the use of s.106 planning obligations.

Graham Jones, Vice President Emeritus of the Society and principal author of the note, said: "This is intended to provide helpful and constructive advice to local planning authorities on the changing legal and policy context, when s.106 obligations can and should be used both now and in the future, and the potential for CIL to provide for infrastructure funding."

POS President Stephen Tapper said: "To make optimum use of the CIL and s.106 requires pro-active infrastructure planning and funding. Effective infrastructure planning requires a coordinated and systematic approach involving a wide range of partners. Authorities need to heed this latest advice.

"April 2014 isn't too far away – so authorities need to be taking action now.”

The Society’s key messages in the advice note are:

• “Decisions on whether to adopt CIL should be taken in full awareness of the scaling back of s.106 obligations and the potential income streams for funding infrastructure. Local authorities should assess how these factors are likely to impact on their particular circumstances
• If an authority has a s.106 based tariff system it should be thinking about working towards CIL as a priority
• S.106 obligations are intended to make unacceptable development acceptable. If a development is acceptable without the obligation, it should be approved
• If an authority has signed agreements for five or more pooled contributions through s.106 obligations, it cannot legally accept any more after April 2014 or the date that it adopts CIL if earlier
• Each individual case should be looked at carefully before seeking s.106 tariff payments. If there is not sufficient evidence to meet the statutory tests the authority may risk challenge that the decision has been taken unlawfully. It will also be vulnerable at any planning appeal
• To make optimum use of the CIL and s.106 requires pro-active infrastructure planning and funding. Effective infrastructure planning requires a co-ordinated and systematic approach involving a wide range of partners
• The increased scrutiny and testing of s.106 obligations should move the negotiation from behind closed doors to a more open and transparent approach, including community involvement
• S.106 obligations should be used for: regulating development; on site mitigation; affordable housing; securing benefits from non-CIL developments. They should not be used for general contributions to infrastructure funding
• The R123 Statement will become very important in the implementation of CIL once authorities have a charging schedule in place. However, there is no requirement to publish the statement in advance of adoption of the charging schedule.”

A copy of the POS advice note can be downloaded here.