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Planning Obligations and CIL

Planning agreements have been a vital part of the planning framework since long before the general power was introduced in section 52 of the 1971 Act - there were provisions in many Local Acts which enabled similar agreements to be used to regulate development and ensure that necessary payments or infrastructure improvements were committed in a legally enforceable agreement.

I have been involved in negotiating such agreements since the earliest days of my legal career. They are an extremely useful part of local planning authorities' powers to secure the delivery of all forms of development and in particular major regeneration and redevelopment projects, as well as urban extensions. They can be used in the context of planning applications for such projects, but also on occasions in connection with development plans and planning CPOs where positive commitments are required to underpin the commitments of landowners.

A specific issue that can arise in major regeneration cases is the need for an effective and enforceable mechanism to enable planning permission to be granted on the basis of a robust framework of control and delivery, where a CPO is needed to assemble the site and the developer cannot 'bind the site' (or all interests in the site) under the necessary section 106 agreement. The mechanism used in this situation is commonly known as 'the Arsenal condition' which I helped the London Borough of Islington to draft as part of the Arsenal Stadium Regeneration project. It involves a carefully structured framework of planning conditions and planning obligations to ensure that the whole of the site is effectively bound into the planning obligations before the development (or relevant phase) commences.

Examples where this structure has been used include:

  • Arsenal Stadium Regeneration Project
  • The London Olympic Bid permissions
  • Brent Cross and Cricklewood
  • Saracens

Corresponding provisions need to be included in development agreements where the local authority is transferring its assets to the developer including where it is transferring assets acquired under the CPO.

Section 106 Agreements are also vital instruments for regulating and securing the delivery of major projects and providing the flexibility to enable such projects to respond to contingencies and opportunities during the delivery phase (some of which can be periods of 15 - 30 years), or in securing long-term delivery of the benefits envisaged from a major redevelopment scheme. Examples in the case studies referred to include:

  • Arsenal Stadium Regeneration - major capacity improvements to public transport infrastructure and community facilities;
  • Brent Cross and Cricklewood - phased transport reports throughout the delivery period to ensure that the impacts, targets and outcomes envisaged in the Transport Assessment are effectively achieved;
  • Saracens Copthall Stadium - achievement of the sustainable transport objectives through effective monitoring and review of the transport impacts plus provisions to ensure that the community health and sporting benefits are achieved in accordance with the 'Saracens Vision';
  • Indescon Court - a point of specific interest was the 'flip-over' arrangement to enable the developer to choose the form of development for Phase 2 which provided the best commercial return in the light of market conditions at the time when development was about to commence;
  • Emmerdale Farm film set - substantial funding secured for major improvements and public access to important heritage assets.

The introduction of CIL has complicated the position with regard to the use of planning obligations. In part this is due to the need to demonstrate under regulation 122 that the proposed planning obligations satisfy the statutory criteria in order to avoid the risk of the obligations being found to be an unlawful reason for granting planning permission, which could mean that the planning permission is quashed. The issue also arises under regulation 123 as to whether contributions to infrastructure are going to be enforceable because of the restriction under this regulation (due to come into force in 2014) to no more than five obligations in support of planning obligations within the area of the charging authority. This is a particular issue with major regeneration schemes which are likely to be still in the early days of implementation when regulation 123 comes into force.

It has been common practice since the CIL regulations were mooted, and particularly since they came into force, to include general provisions in Section 106 Agreements to anticipate some of the problems that CIL may create in this context, including a general provision designed to achieve a fair and reasonable outcome in the event that developers face double-jeopardy by virtue of the overlap of planning obligations and CIL. An example of this appears in the Section 106 Agreement for the Brent Cross and Cricklewood Regeneration Scheme.

Planning Obligations & CIL Case Studies

Arsenal Stadium Regeneration Scheme

Arsenal Stadium Regeneration Scheme
Arsenal Stadium regeneration scheme has become a landmark success story in stadium-led regeneration - it was delivered on time and within budget and has been a catalyst for major environmental, physical and social improvements in the area, as well as...
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Brent Cross and Cricklewood Regeneration

Brent Cross and Cricklewood Regeneration
Advising and acting for the London Borough of Barnet in relation to the determination of what was probably the largest single planning application in north-west London and certainly the largest in Barnet.
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Saracens Copthall Multi-functional Community Stadium

Saracens Copthall Multi-functional Community Stadium
The recent grant of planning permission for Saracens' proposed Stadium at Copthall involved redeveloping and rejuvenating an existing stadium in the metropolitan green belt.
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Paul came to us with a reputation as one of the top Planning lawyers in the country. This was soon borne out by the quality of his advice - it was clear that his experience and expertise put him at the very top of his profession. Countless problems and barriers were overcome with the benefit of his skill and sound judgement, often leading to a least cost solution thereby providing real value for money. As for future clients: well they can have absolute trust in his integrity and commitment to them, he is totally reliable, highly responsive and his advice will always be delivered in a calm and thoughtful fashion that instils confidence. I cannot think of a more popular and effective member of...

Kevin O'Leary, Corporate Director - Environment & Regeneration Islington Council

Paul's contribution to the planning strategy for our Indescon Court site and in the negotiations with the Council and other parties, was crucial to our unlocking the site's optimum commercial value and its eventual disposal for substantial residential development.

Tim J Garnett, FRICS, Managing Director, Ogden Properties Limited