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29 November 2019

Publish date: 29/11/2019

CIL Regulation 122(2A)

When the most recent CIL Amendment Regulations entered the statute books in September, most of the column inches published focused on the removal of pooling restrictions (one of 2015's most thorny issues) and the replacement of Regulation 123 Lists with 'Annual Infrastructure Statements'.

A new feature introduced by the 2019 amendments garnering less publicity appeared at Regulation 10 which finally put a local planning authority's entitlement to claim costs associated with monitoring compliance with planning obligations on a statutory footing.

The amendments, inserted into the 2010 Regulations as Regulation 122(2A), provide that fees associated with monitoring and reporting on planning obligations given by developers and landowners are capable of being charged through section 106 agreements provided that they 'fairly and reasonable related in scale and kind to the development' and do 'not exceed the authority's estimate of its cost of monitoring the development over the lifetime of the planning obligations which relate to that development'.

Monitoring fees have been around for some time (usually appearing at the front end of any agreement alongside a requirement to pay the local planning authority's legal fees) and their imposition was challenged back in 2015 in Oxfordshire ([2015] EWHC 186 Admin), where the High Court found that they were not 'necessary to make the development acceptable in planning terms' and were not therefore planning obligations meeting the requirements of the test in the version of Regulation 122 in force prior to September.

The decision in Oxfordshire has been subject to mixed judicial treatment and Regulation 122(2A) resolves any ambiguity.

Bringing the monitoring costs test in line with those relevant to imposition of planning obligations makes sense. It does, however, limit what had been for some LPAs a healthy income stream. Prior to September, the position had been that monitoring costs were not to be considered when determining whether to grant planning consent. Developers would accuse authorities of imposing monitoring costs arbitrarily, whilst authorities would argue that the job of ensuring developers were sticking to what they had agreed by way of planning obligation is a lengthy and frustrating process.

The amendments make it clear to both sides that monitoring costs must always be fair and reasonable. Will the amendments provide a new ground for legal challenge? Will LPAs need to publish schedules showing how monitoring costs are incurred? Just how this impacts upon the level of fee being imposed remains to be seen.

David Mathias