I have had a couple of conversations in the past week or so in which I have been asked if I think the Government will push back the April 2015 deadline and allow local authorities to pool s.106 contributions for a while longer. This was one of our 2015 predictions, but if the Government's recent response to the Select Committee report on NPPF is anything to go by, there will be no change on the date and pooling will fall foul of CIL Regulation 123 from April this year:
"Although it is not mandatory for local planning authorities to adopt the Levy, when the regulations were originally introduced in 2010 it was made clear that this pooling restriction would apply nationally for section 106 contributions from 6 April 2014. This was delayed by a year to April 2015 when the regulations were amended last year to give local planning authorities more time to either implement the Levy, or determine that they would choose to operate within a more restricted section 106 regime. Local Planning authorities have therefore had considerable notice of the pooling restriction and the opportunity to consider its potential effects locally" (para 54)
Unlike CIL Regulation 122 where so much is capable of being left to the local planning authority's discretion, CIL Regulation 123 precludes an obligation being taken into account (constituting a reason for grant) if a) it provides for funding of an infrastructure project or type, and b) 5 or more separate obligations have already been entered into since April 2010 within the relevant area which provide for the funding of that infrastructure project or type. This is much more restrictive.
In many cases, developers are content to accept CIL Regulation 122 compliance has been achieved so that they can move forward with a negotiated approval. It will not be quite so straightforward to agree CIL Regulation 123 compliance. This could catch applicants/appellants out as well as local planning authorities. If your development gives rise to a risk of harm which needs to be mitigated (such that the necessity test under CIL Regulation 122 would be met), but the only real solution is payment into a pool - how will that work after April 2015 where more than 5 obligations have been entered into? And how straightforward will it be to know whether the cap of 5 has been reached?
Parties will need to consider this change for current applications where pooled contributions are being discussed and will need to consider alternative ways of securing necessary mitigation. This will be even more problematic on appeal where presumably we can expect the Inspector or PINS to make relevant enquiry of the local planning authority.