Development Contribution: Section 106 and CIL

Overview

All the members of our planning group are therefore regularly concerned with the advising on planning obligations in the context of planning applications and appeals. We also regularly advise local authorities and developers in connection with the CIL, including issues relating to exemption and relief entitlement, state aid, and liability.

Members of Chambers have expertise on planning viability issues, including in relation to affordable housing. Barristers from Landmark acted on all sides on relation to the Parkhurst case (both on the s.78 appeal and in the High Court case of Parkhurst Road Ltd v SSCLG [2018] EWHC 991 (Admin)) and in the William Sutton Estates decision on affordable housing in an estates regeneration (APP/K5600/W/17/3177810).

Once section 106 agreements have been entered into and the development has commenced, different issues arise. Developers regularly look to challenge or modify planning obligations by a variety of methods including:

• Challenges to the validity of the obligations
• Disputing whether development on which the obligations are conditional has commenced
• Challenges to the lawfulness of a decision to enforce
• Applications to discharge or modify the obligations under section 106A, 106B or 106C.

Members of our planning group regularly appear for developers and local authorities in cases involving such challenges.

Enforcement of planning obligations is dealt with by way of private law claims, either in court or in arbitration. At this stage issues include:

• Misrepresentation and mistake
• Construction of agreements, and implied terms
• Estoppel
• Who is liable, in particular mortgagees and tenants?
• Is self-help or an award of damages an adequate remedy?
• Are the criteria for granting an injunction met?
• Effect of delay
• Remedies for enforcing Grampian type obligations.

These issues require an understanding of private law remedies and defences as well as of the statutory and public law context. Landmark Chambers can offer barristers with expertise in these private law issues to deal with enforcement on their own or alongside a planning specialist.

Community Infrastructure Levy

Barristers frequently act in statutory appeals under the Community Infrastructure Levy Regulations 2010, and have appeared in a number of the most important judicial review cases concerning CIL including:

• R (Oates) v Wealden DC [2018] EWCA Civ 1304 (application of regulation 123)
• R (Orbital Shopping Parks Swindon) v Swindon BC [2016] P.T.S.R. 736 - challenge to liability notice
• R (Fox Strategic Land and Property Ltd) v Chorley BC [2014] J.P.L. 1152 - challenge to the adoption of a CIL charging schedule.

Important issues on which Landmark’s barristers are often instructed to advise include:

• the interaction between CIL and section 106 planning obligations
• the indexation of CIL where planning permission is amended
• bringing forward a CIL Charging Schedule and getting it through an examination.

Landmark is also uniquely placed to give advice on CIL issues that raise questions of property law. For example, barristers have recently advised in relation to whether a series of property transactions are material disposals that disqualify a person from claiming “exceptional circumstances” relief under regulation 57.