Taking another look at the consultation for proposed amendments to the CIL regulations from a developer’s point of view, it is worth noting the proposals in relation to section 278 agreements. These are agreements under the Highways Act made between the relevant highway authority and a developer to ensure delivery of necessary highways works in relation to a development. The limitations on planning obligations which are set out in regulation 123 do not apply to section 278 agreements, so that means authorities can combine both section 278 and CIL to fund improvements to local highways – meaning local authorities can enter into unlimited section 278 agreements for the same piece of infrastructure. Presently, there are not arrangements for the relationship between section 278 agreements and CIL to be visible or regulated in the same way as pooled contributions under section 106 planning obligations.
The consultation is seeking views on the proposal that regulation 123 should be extended to include section 278 agreements, so they cannot be used to fund infrastructure which is on the local charging authority’s CIL list. Whilst this might take away the double counting/double payment issue, where the 278 works are necessary for the development, a developer may still prefer to fund these directly and see that they are undertaken in time, rather than commit a CIL payment to the CIL pot and wait and see when the works are delivered. If the payment in kind provisions are revised as suggested, that will present a solution to the issue, if such provisions are adopted by a charging authority. Perhaps the proposals will be more relevant to larger scale highways works, which are to be funded off the back of several approved developments – in which case they are likely to be larger financial commitments and developers are likely to welcome an end to the possibility of double charging, albeit with the potential uncertainty around the timing of delivery of the works.