From this month, changes to the way developers fund local infrastructure projects could impact on housing delivery across England and Wales.

Regulation 123 of the Community infrastructure Levy (CIL) Regulations 2010 (as amended) restricts the use of Section 106 planning obligations as a reason for granting planning permission in favour of CIL collection. These changes provide greater perspective that the government sees infrastructure being delivered through CIL, charged on a per square metre of new floor space. In summary, the new regulation

  • restricts the use of planning obligations as a reason for granting planning permissions where five or more planning obligations had been entered into within the area of a charging authority on or after 6 April 2010
  • prohibits local planning authorities in England and Wales, with or without a CIL charging schedule in place, from requiring a planning obligation that pools funds for infrastructure provision
  • where a planning obligation that is a reason for granting permission does not fall foul of the Regulation 123(3) restrictions and the charging authority has CIL in place, then Regulation 123(2) also applies
  • prohibits a planning obligation that provides for the funding or provision of “relevant infrastructure” once a charging schedule is in place constituting a reason for granting planning permission
  • relevant infrastructure is the list of infrastructure projects or types published on the charging authority’s website, often called its Regulation 123 list.

Regulation 123 will likely further the number of local authorities pursuing CIL as a method of securing all but site-specific infrastructure delivery. Affordable housing also continues to be secured under Section 106.
Despite these imminent changes, around 75% of charging authorities did not have CIL in place on 6 April 2015.

Therefore we urge local authorities to consider the restrictions on planning obligations imposed through Regulation 123. This will help guide decisions on what infrastructure projects may constitute a reason for granting planning permission.

Ian Stevens is senior planner at Savills