S106/CIL AGREEMENTS

Question

I recently had an issue regarding the deployment of a S106 agreement signed in 2003 but not yet fully deployed. The agreement was signed by my PC, the Planning Authority and the developer. My understanding that deployment was due to be overseen by Development Control. Having raised the issue with my PC they then attempted to vary the terms of the agreement with the support of the Planning Authority (to align with their wishes) but eventually gave up and acceded to my view.  Having said that there was one main item within my issue which they failed to agree with and defended their standpoint by quoting the agreement and saying they were unable to change as the point being challenged was a sacrosanct “planning condition”.  So in practice they were quiet happy  to completely vary their signed agreement but having failed, were not then prepared to slightly vary what was left.  The lessons learnt by me was that S106 agreements (now CIL) are exclusive agreements between named parties to which the public has no right of challenge. I note now with CIL my PC has published what all future income will be spent on. My question is there any guidance on how such “windfall income “is spent and is there any requirement to at least consult.

Answer 1

From my experience, Section 106 agreements are a legal contract signed prior to the grant of planning consent and are more or less set in stone.  Unless the agreement specifically provides for amendment by one party and not the other(s), any subsequent re-negotiation might invalidate the original agreement.

If the agreement provides a sum of money for quantified, categorised, but non-specific sums (e.g. £500k for education), it is for the recipient authority to determine how the money will be spent.  In the case of a parish council, this would be included in their normal budgetary process.

One of the leading concerns in my area with S106 is that it is enforceable only against the original parties to the agreement. If a developer sells a plot with planning permission before commencing development, it is virtually impossible to enforce the S106.

Answer 2

You should not regard S106/CIL's as "Windfall income"or something subject to consultation by default.  S106 agreements are between a developer and a local planning authority about measures to reduce their impact on the community. A section 106 agreement makes a development possible that would otherwise not be possible, by obtaining concessions and contributions from the developer.. Community Infrastructure Levy (CIL) is a charge that local authorities can set on new development in order to raise funds to help fund the infrastructure, facilities and services - such as schools or transport improvements - which are needed to support new homes and businesses in the areas.   Agreements and CIL spend can only normally be varied with the consent of all parties they are subject to.

Comments

As you say Graeme that is indeed my experience. In my case CIL payments are to be used a) further support a huge loss making venture and  b) an  "enhancement scheme" which has no measurement so improvement cannot be quantified. It just frustrates the hell out of me that normal VFM considerations which would normally be part and parcel of any properly run project, just go out of the window