In Oxfordshire CC v Secretary of State for Communities and Local Government & Ors [2015] EWHC 186 (Admin), the High Court held that the monitoring fees routinely added to section 106 costs will not generally meet the test of ‘necessity’ required through the CIL regulations.

Cherwell District Council refused permission for a small residential development, so the terms of the section 106 agreement were negotiated through the subsequent planning appeal, including a £3,000 monitoring fee. The Inspector considered each obligation against the tests in regulation 122 of the CIL Regulations, and took some out including the monitoring fee, commenting that: “…the payment of a monitoring/administration fee [is] not necessary to make the development acceptable in planning terms."

This decision was challenged by Oxfordshire County Council as well as the District Council, but Lang J supported the Inspector’s position, holding that:

“the Inspector was entitled to conclude that a contribution to the administration and monitoring costs was not "necessary" to make the development acceptable in planning terms”.

This will be a helpful decision for developers in the middle of section 106 negotiations. Although matters will still need to be decided on a case-by-case basis, in ‘routine’ cases such as this there is now a basis for resisting these fees.

See here for the full text of the case.