From 6 April 2010, local planning authorities will not be able to consider a payment or other benefit offered pursuant to a section 106 agreement (a planning obligation) as “material” to a decision to grant planning permission unless certain statutory criteria are met.

These criteria, which are set out under the Community Infrastructure Levy Regulations 2010 (regulation 122), provide that the planning obligation must be:

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

Although these criteria are not new (they have previously been referred to in guidance and case law), this is the first time that they have been placed on a statutory footing. It is now mandatory that each criterion be addressed prior to granting planning permission subject to a section 106 agreement.