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30 Sep
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Planning Obligations: Could your development be at risk of ‘double dipping’?

Despite the introduction of the Community Infrastructure Levy (CIL) planning obligations are still commonplace in the planning process. 

Planning obligations can take the form of a Section 106 Agreement or Unilateral Undertaking.  They can be sought alongside CIL, where it is adopted, or on their own where CIL is not yet introduced. 

Planning obligations are often misused and misunderstood and this has been further complicated by the introduction of CIL.  Because of this we aim to address some of the main queries about planning obligations and there relationship to CIL here. 

1.  What is the difference between a planning obligation and CIL?

Put simply, CIL is a charging schedule that is formerly adopted by the Local Planning Authority, having been independently examined.  It includes fixed charges linked to specific types of development and the money raised is directed to fund specific infrastructure projects across the Local Authority area.  It is pretty much non-negotiable.

Planning obligations are negotiated for individual planning applications.  There is a degree of flexibility about when they are required and their content, in terms of what they include and the cost.  They are site specific and address issues arising with a particular development. 

2.  How do planning obligations relate to CIL?

Many local authorities are yet to adopt CIL and so planning obligations are their only methods of securing funding for infrastructure associated with a development.  Where CIL is adopted they can be sought alongside each other and this is where the risk of ‘double dipping’ arises.  This is where CIL is sought alongside a planning obligation for the same item.   In order to avoid this make sure you review the CIL 123 list which sets out the items that CIL relates too.  Planning obligations should only be sought for items that are not on the list and pass the planning obligations tests (below).  These are most likely to be items of infrastructure that relate specifically to the site and so would not have been considered in the Local Authority wide CIL. 

3.  What can local authorities include as planning obligations?

It is also important to be aware of what Local Authorities can request as planning obligations.  Planning Law (Community Infrastructure Levy Regulations) and National planning guidance (National Planning Practice Guidance) are clear on when planning obligations can be sought by Local Planning Authorities.  Despite this, Local Authorities often request contributions that are inappropriate.  So that you don’t fall into this pitfall, always remember that planning obligations MUST meet three criteria:

  1. They MUST be necessary to make the development acceptable in planning terms.
  2. They MUST be directly related to the development.
  3. They MUST be fairly and reasonably related in scale and kind.

Any request for a planning obligation must be supported by appropriate evidence and it cannot include things such as public art, which are not necessary but just preferable.  

NJL actively monitors the production of CIL across the Country and engages in the CIL Examination process on behalf of clients.  If you would like any help engaging with this process or navigating the complex world of planning obligations please get in touch with us today.    

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