I have been wearing my CIL anorak a lot recently – fully zipped up and my hood on… It seems that no matter how long I do CIL there are always questions to be pondered on – these are the ones that are exercising me at the moment.
Do people really get that there is no pooling of more than five s106 obligations after 2015? I am not convinced that this has totally sunk in – or that the implications of this has been explained to councillors or management teams. I also think that some think that there is a way around it – if there is please tell me! I can understand that some take the view that they will do everything on large strategic sites with s106 – this might be possible but:
• Have you worked out how you can make sure that these sites are not broken up into more than five parcels?
• Do you have policies that define not only the new developments but also the required infrastructure on the strategic site?
• And will you only accept a master planning application for the whole package? Would you be in a position to refuse applications that came in for chunks of it?
If you have thought this through and have an air- tight approach – I am really interested. It certainly needs a lot of thought.
In areas where the growth is not strategic sites I am truly puzzled if people think the pooling limit will work for them. The assumption must be that they will not bother. That CIL is not worth doing, is too expensive to implement, there’s not enough viability to get a decent rate, and will only provide 5-10% of infrastructure money (a small contribution – but not to be sniffed at I would have thought). So, is the focus on ‘New Homes Bonus’ to provide supporting infrastructure?
I also worry that some think that you can still pool if it is site-specific mitigation – just to be clear –you can’t pool five or more, even if it is necessary to make the development acceptable in planning terms.
So what will you do? Refuse it?
Oh, to end on some potentially good news – there is no pooling restrictions on s278 of the Highways Act. Hooray!
For more information, see the CIL section on the PAS website.
Planning Advisory Service 
I am certainly a proponent of implementing a CIL ahead of the April 2015 deadline. However, for those LPAs where this is not possible or desirable, it is worth noting that the 5 obligation pooling limit relates to general “types” of infrastructure but also specific “infrastructure projects”. So a well-established approach amongst LPAs is to be more specific in S106 agreements; an example would be to collect 5 contributions for “Primary School A” and another 5 for “Primary School B” rather than simply 5 towards “Education” as a generic type of infrastructure.
On your final point about site-specific mitigation also being caught by the pooling limit, you are quite correct but this is not too concerning in most cases: firstly site-specific infrastructure requirements could be worded more specifically (as explained above) and so unless the site is subdivided into more than 5 separate planning applications this is unlikely to cause too much difficulty. Secondly, as a last resort, LPAs could reasonably refuse an application if such essential mitigating infrastructure was not to be provided because by definition it is necessary to make the application acceptable in planning terms. In this scenario, it is in the developers interest to deliver the infrastructure through S106 or otherwise.
I would certainly agree with you that being specific in terms of s106 is the way to go. But I think you need to be careful that the project is truly a project and not part of one. If you need to build a new school the project, in my view, is the school – not each classroom. The project to an existing school might be the classroom extension. I was speaking to someone yesterday about their need for a new secondary school that would need to pool contributions from a lot of applications to achieve the funding – and this after March next year will not be possible – as the project is clearly a whole school. There are lots of areas with small sites that at present all contribute a little to an infrastructure project as the incremental impact needs to be addressed. These are the areas that will be particularly hit.
My concern is that Councils may feel that they need to refuse applications because they cannot secure the mitigation but they may not feel strong enough- depending on their 5 year land supply – to do this resulting in development that is seen by the community as a further drain on their current infrastructure- reinforcing the anti development views in some areas. To refuse consent for an otherwise acceptable development because there is no mechanism in place for developer contributions will fail to provide for the growth of the area, will harm communities, not to mention the reputation of Councils and planners. Because regardless of the ‘rules’ that have caused this it will be our fault for not getting a CIL in place in time.