6th April 2010 marked the commencement of the Community infrastructure Levy Regulations 2010 and the ability for local planning authorities to charge the Levy on new developments. However, it is likely to be some time before local planning authorities start doing so as they need to adopt a charging schedule and this is a lengthy process. What the Regulations do achieve immediately however is a limitation on the use of planning obligations. A planning obligation may now only constitute a reason for granting planning permission for a development if the obligation is;-
- necessary to make the development acceptable in planning terms;
- directly related to the development; and
- fairly and reasonably related in scale and kind to the development.
This amendment means that some s106 planning obligations which are completed after 6th April, even if the resolution to grant was made before 6th April, may not meet the above policy test and will therefore leave the resultant planning permissions vulnerable to judicial challenge.
In relation to s106 planning obligations being entered into after
6th April 2010 we suggest that where they include requirements for
infrastructure payments, they should also include provisions to
allow these obligations to be revisited in the event of a charging
schedule being adopted and therefore the Levy becoming payable on
top of the s106 planning obligation payments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
