Removal of Section 106 Pooling Restrictions

Published on: 2nd July 2019

What Is CIL?

CIL charges were introduced in early 2010 to raise funds to help provide the supporting infrastructure and facilities required for new developments such as schools or improvements to the transport network. The amount developers must pay will depend on the size and type of development and vary locally. But unlike planning obligations secured by Section 106 (s106) agreements, CIL is non-negotiable. Since its contested inception CIL has undergone numerous reforms to adapt its methods to become a viable source of funding, the latest of which looks to be a positive step in the right direction.

Draft Reforms

It has recently been announced in draft legislation that changes will be enforced to make the CIL system simpler for both developers and councils with a view to increasing the rate in housing delivery. Councils will now be required to publish the CIL payments they receive from developers and how the money will be spent in an attempt at introducing a higher level of transparency. However, the starkest change will be seen from the removal of pooling restrictions for which we believe will be beneficial for not only Councils but importantly developers also. Councils have under the current legislation only been able to collect up to five contributions to fund the same item of infrastructure using s106 obligations (Councils will once again be allowed to collect more than five contributions) which consequently has made some authorities reluctant to permit subsequent development as funding for infrastructure works was restricted. Alternatively there have also been unfortunate scenarios where funding has not been sufficient to deliver a specific infrastructure project in full because the largest developments in the area envisaged to come forward during the plan period, and which were earmarked by Councils to contribute, have not come forward.

We envisage removal of the pooling restriction will create more certainty and ultimately is more likely to mean infrastructure projects being delivered in full, which can only be beneficial to local communities. It should also mean going forward there will be fewer refusals of planning permission on sites that are otherwise acceptable, apart from there being an absence of infrastructure funding (as the mechanism preventing contributions will have been removed). This has been echoed by the Housing Minister Kit Malthouse who believes this pooling removal will lead to the council having more freedom allowing quicker planning decisions and contribute to delivering an extra 300,000 homes by the mid-2020s. The proof will be in the pudding.

If you would like to discuss how this change may benefit your development or you require any assistance on any other planning issues please don’t contact our Head of Planning Owen Pike MRTPI on 0117 338 1813 or owen.pike@sw.co.uk.

Contact Us

Planning

We provide a complete planning service to a range of private and public sector clients including property owners, occupiers, developers, investors, institutions and local planning authorities in the residential, commercial, renewables, leisure and agricultural sectors. Our advice is based on extensive knowledge of the ever-complex and fast-changing UK planning system.  This enables us to provide bespoke and cost-effective advice at all stages of development from project inception, spatial master planning to negotiating final project delivery. We pride ourselves on always offering one principal point of contact which means our advice is always consistent and provided in a timely manner.  It also means that each member of our team embraces responsibility.  Our collaborative way of working with other technical specialists means we are experts at finding solutions to assist in unlocking latent value. The Planning Process   The basis for decision making is set out on planning legislation, that is, “if regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". We apply this approach to each of our planning services.  Our Services We offer the following services: • Planning Strategy Formulation • Planning Appraisals • Planning Applications & Appeals • Community & Stakeholder Engagement • Environmental Impact Assessment • Planning Obligation Negotiation • Land Promotion • Policy Representations • Monitoring Services • Master Planning & Development Briefs • Due Diligence   Contact Us

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We provide a complete planning service to a range of private and public sector clients including property owners, occupiers, developers, investors, institutions and local planning authorities in the residential, commercial, renewables, leisure and agricultural sectors.

Our advice is based on extensive knowledge of the ever-complex and fast-changing UK planning system.  This enables us to provide bespoke and cost-effective advice at all stages of development from project inception, spatial master planning to negotiating final project delivery.

We pride ourselves on always offering one principal point of contact which means our advice is always consistent and provided in a timely manner.  It also means that each member of our team embraces responsibility.  Our collaborative way of working with other technical specialists means we are experts at finding solutions to assist in unlocking latent value.

The Planning Process

SandersonWeatherall-Planning-Flowchart

 

The basis for decision making is set out on planning legislation, that is, “if regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". We apply this approach to each of our planning services. 

Our Services

We offer the following services:

• Planning Strategy Formulation

• Planning Appraisals

• Planning Applications & Appeals

• Community & Stakeholder Engagement

• Environmental Impact Assessment

• Planning Obligation Negotiation

• Land Promotion

• Policy Representations

• Monitoring Services

• Master Planning & Development Briefs

• Due Diligence

 

Contact Us

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Planning Strategy Formulation

We are adept at devising planning strategies that aim to facilitate our client’s objectives and deliver their development projects because we remain abreast of market, policy, legislative and case law developments.   We are also able to offer advice on what planning policies take precedence by having detailed knowledge of current and emerging Development Plan policies as well as national planning policy.  Our appreciation of the importance of local politics means we are able to develop strategies to successfully navigate the planning and political arenas.   Every case is different as client’s objectives vary, as do economic, social and environmental characteristics of an area, individual features on potential development sites, neighbouring land uses, planning histories, policy frameworks and levels of objectively assessed housing need.  Our aim is to secure client’s approval as efficiently as possible.   • Planning Application Strategy – if there is a supportive policy framework at present or development potential in the short-term with support from material considerations.  This may be a one off action or take a phased and collaborative approach. • Evidence Gathering Strategy – alternatively we may suggest this so that a Certificate of Lawfulness application can be prepared and submitted. • Planning Appeal Strategy – this might be devised if the existing policy framework is not favourable to a client’s objectives. • Policy Representations Strategy - if client’s objectives are not time constrained and they have a long-term interest in a building, or a parcel of land, this approach may be advocated and a bespoke strategy devised. • Land Promotion Strategy – alternatively this may focus on promoting the development, or redevelopment of a site. So making representations on a number of Development Plan Documents (DPD), Supplementary Planning Documents (SPD) and other policy documents. • Community & Stakeholder Engagement Strategy – this may be devised in assisting clients with despoiled or visually discordant urban and rural sites if there is an opportunity to develop and sell a vision for these to LPAs, Town and Parish Councils, neighbourhood forums and local communities. Contact Us

Read More....

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We are adept at devising planning strategies that aim to facilitate our client’s objectives and deliver their development projects because we remain abreast of market, policy, legislative and case law developments.

 

We are also able to offer advice on what planning policies take precedence by having detailed knowledge of current and emerging Development Plan policies as well as national planning policy.  Our appreciation of the importance of local politics means we are able to develop strategies to successfully navigate the planning and political arenas.

 

Every case is different as client’s objectives vary, as do economic, social and environmental characteristics of an area, individual features on potential development sites, neighbouring land uses, planning histories, policy frameworks and levels of objectively assessed housing need.  Our aim is to secure client’s approval as efficiently as possible.

 

• Planning Application Strategy – if there is a supportive policy framework at present or development potential in the short-term with support from material considerations.  This may be a one off action or take a phased and collaborative approach.

• Evidence Gathering Strategy – alternatively we may suggest this so that a Certificate of Lawfulness application can be prepared and submitted.

• Planning Appeal Strategy – this might be devised if the existing policy framework is not favourable to a client’s objectives.

• Policy Representations Strategy - if client’s objectives are not time constrained and they have a long-term interest in a building, or a parcel of land, this approach may be advocated and a bespoke strategy devised.

• Land Promotion Strategy – alternatively this may focus on promoting the development, or redevelopment of a site. So making representations on a number of Development Plan Documents (DPD), Supplementary Planning Documents (SPD) and other policy documents.

• Community & Stakeholder Engagement Strategy – this may be devised in assisting clients with despoiled or visually discordant urban and rural sites if there is an opportunity to develop and sell a vision for these to LPAs, Town and Parish Councils, neighbourhood forums and local communities.

Contact Us

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When can a fall-back development be a material planning consideration?

Many of our projects are on established sites or brownfield sites in countryside locations and designated landscapes where development is restrictive. Over the last year, we have advised on sites in a number of sensitive locations including the North Yorkshire Moors National Park, the Cotswolds Area of Outstanding Natural Beauty (AONB) and the Gower AONB.

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Many of our projects are on established sites or brownfield sites in countryside locations and designated landscapes where development is restrictive. Over the last year, we have advised on sites in a number of sensitive locations including the North Yorkshire Moors National Park, the Cotswolds Area of Outstanding Natural Beauty (AONB) and the Gower AONB.

[fulltext] =>

Given such restrictions, it can be very easy for local planning authorities to resist proposed developments on the basis that their planning policies do not allow new residential, office, warehousing or tourism developments. We are therefore often appointed to devise supporting planning cases based on Development Plan policies and material considerations, which can include national planning policy as reflected in the NPPF (revised in July 2018) and national planning guidance. This can require ‘out of the box thinking’. For example, we pride ourselves in undertaking thorough site research at the beginning of commissions to establish what Permitted Development Rights (PDR) (i.e. what type of development can take place without the need of planning permission) exist at a site. This can then be used when negotiating planning applications and in some circumstances, it can tip the planning balance in favour of a planning application.

In this regard, a 2017 Court of Appeal Judgement (Mansell v. Tonbridge & Malling Borough Council [2017] EWCA Civ 1314) clarified when a fall-back development may be a material planning consideration for an alternative development. This case concerned an appeal concerning a decision of Garnham J in dismissing a claim for judicial review of a planning permission granted by Tonbridge & Malling Borough Council. The demolition being the demolition of a barn and bungalows and the construction of 4 detached dwellings.

In the Court of Appeal Judgement, Lindblom LJ confirmed the legal considerations in determining the materiality of the ‘fall back’ position as a planning judgement were as follows:

- the basic principle is that for a prospect to be a real prospect it does not have to be probable or likely, a possibility will suffice.
- there is no rule of law that in every case the ‘real prospect’ will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases, that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker’s planning judgement in the particular circumstances of the case in hand.

We have recently referred to this case when submitting planning applications for residential developments in Wealden, Cornwall and Lewes. Although these planning applications are still under consideration, we have persuaded the planning officers that each of these sites benefit from a number of fall-back developments and these positions should be given significant weight in the planning balance exercise. Our research in establishing that fall-back developments exist has therefore enhanced the prospects of obtaining planning permission in each case; we are hopeful of receiving positive decisions shortly.

Please contact Owen Pike on 0117 338 1813 if you want to discuss this Court of Appeal Judgement or if you require planning advice on a project.

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