Community Infrastructure Levy (CIL) Regulation 123 restricts the use of pooled contributions towards infrastructure that will, in the future, be funded by the CIL itself.

With effect from 6 April 2015, no more contributions may be collected in respect of a specific infrastructure project or a type of infrastructure through a Section 106 agreement, if five or more obligations for that project or type of infrastructure have already been entered into since 6 April 2010 and it is a type of infrastructure that is capable of being funded by CIL.

The current tests for legal agreements are set out in CIL Regulation 122 (2) and paragraph 204 of the NPPF, whereby the obligation must be:

  • necessary to make the development acceptable in planning terms
  • directly related to the development
  • fairly and reasonably related in scale and kind to the development.

From 6 April 2015, and until the council adopts its CIL Charging Schedule,  infrastructure contributions will only be requested:

(i)     on a site-specific basis at the request of the infrastructure provider

(ii)   where the infrastructure provider can confirm that the request meets the pooling limit of no more than five permissions/obligations since 6 April 2010; and

(iii) in accordance with the following thresholds:

 

Scale of development

Contributions to be requested

Schemes of 5 or fewer (net) dwellings

Affordable housing provision and tariff- style payments can only be sought if the combined gross floor space of the development exceeds 1000 sq m.

· Special Protection Areas (see below)

Schemes of 6 -10 (net) dwellings

Affordable housing and tariff-style contributions can be sought in the following circumstances:

  1. where the combined gross floor space of the development exceeds 1000 sq m, affordable housing provision and tariff-style payments can be sought in accordance with existing policies
  2. if the gross floor space of the development is 1000 sq m or less, then contributions can only be sought for sites that are within the AONB. In such cases, affordable housing and tariff-style contributions can be sought in the form of a cash payment that is commuted until after completion of units within the development.

· Special Protection Areas (see below)

Schemes of more than 10 units

Affordable housing provision and tariff-style payments can be sought in accordance with the existing policies.

· Special Protection Areas (see below)

 

Thames Basin Heaths and Wealden Heaths Special Protection Areas (SPAs)

Mitigating the effects of development on the habitats of these SPAs is a legal requirement of the EU Directive. Contributions will continue to be collected from all residential developments within 5 km of the Thames Basin Heaths SPA in accordance with the approved the Thames Basin Heaths Avoidance Strategy and on a case-by-case basis for Wealden Heaths SPA.

The effect of CIL regulation 123 is that the council can no longer collect tariff-style contributions from developers to pooled ‘funding pots’ intended to provide common types of infrastructure for the wider area. This was the basis for the council’s Planning Infrastructure Contributions Supplementary Planning Document (SPD). However, whilst the tariff system set out in the SPD is no longer valid, the SPD itself contains useful information on the principles behind the negotiation of planning obligations required in connection with particular forms of new development (saved Local Plan Policies D13 and D14 within Chapter 2: Development).

Where infrastructure contributions (excluding affordable housing) are required, the scale of charges set out below should be used to assess the amount of money to be requested. These are for guidance only and can be regarded as a starting point for calculating the required contribution. In each case, consideration should be given to –

  • the total cost of the infrastructure type or project
  • alternative  or complementary sources of funding; and
  • the restriction that no more than five obligations can be pooled towards the funding of the infrastructure type or project.

 

 Securing a Legal Agreement

Contributions towards infrastructure and  the SPA are secured by Unilateral Undertakings. The Council has produced model Unilateral Undertakings which can be used by developers.

If the model unilateral undertaking is being used, please submit the following with the application:

  1. A draft Unilateral Undertaking in the appropriate format (see the model unilateral undertakings) ;
  2. If necessary, Land Registry title number(s) or up-to-date title register and plan for the application site (and other land if the planning obligation relates to land outside the application site) ; and
  3. The fee for reviewing the Unilateral Undertaking (see below).

The applicant landowner, mortgagee and any person with a legal interest in the application site, will be required to be a party to the Undertaking.

If applicants wish to prepare the Undertaking themselves, there will be a standard fee of £250 per Undertaking for the Council's Legal Services team to review the document and to check title.

Please ensure that the final signed Undertaking is returned to Legal Services AT LEAST ONE WEEK prior to determination of the application, or it could result in a refusal of the application.

Alternatively, the Council's Legal Services team can prepare an Undertaking for signature by all parties. The fee for this is £450 per Undertaking, and you should submit this with your application together with up-to-date copies of your Land Registry title register and plan.

In the event of particular complexities in reviewing or drafting a Unilateral Undertaking, the legal fee may be increased at the Council's discretion.

Please note that the model Unilateral Undertaking is not designed to secure on-site affordable housing or on-site Suitable Alternative Natural Greenspace (SANG) and are unlikely to be appropriate for major developments. Please contact the Legal Services team in advance for an estimate of the cost of preparing or reviewing a bespoke planning obligation.

Exceptions

No contribution is required for -

  • Temporary dwellings, replacement dwellings or affordable housing
  • Rural exception sites
  • Gypsy and Traveller Sites: the Caravan Act allows caravans within certain dimensions to be replaced without consent

Re-applications

Where there is permission on a site which was not previously subject to the tariff, and a new application is received on the same site -

  • Increase in the number of dwellings or bedrooms on site: contribution for the difference. 
  • Same number of dwellings: no contribution for period up to expiry of extant permission, but clause in Unilateral Undertaking to contribute if commencement of development is after expiry.

 

Page owner: Jennie Falconer. Last updated: 02/02/2017 12:37