Planning obligations under Section 106 of the Town and Country Planning Act 1990, commonly known as s.106 agreements, are the mechanism whereby development proposals can be made acceptable in planning terms, which would not otherwise be acceptable. They are focused on site-specific mitigation of the impact of development.
If the extent of the transport mitigation proposed is significant, for example the delivery of a new bus station, a new entrance to an Underground station or other such works where TfL will be a beneficiary or TfL is a land owner, TfL should be signatory to the agreement. TfL can assist in the drafting of the agreement and help to ensure that the obligations are ultimately delivered.
In all other cases, TfL will look to the borough to agree the s.106 and include the necessary clauses to reflect mitigation outlined in the Mayor's decision. If drafted into the agreement, TfL can have rights to enforce any relevant s.106 clauses under the Contract (Rights of Third Parties) Act 1999.
In all cases, early engagement with TfL is recommended. Where TfL is party to the agreement, the payment of TfL's legal fees (and possibly other fees if TfL is required to sign off a design or scheme delivered through the s.106) will need to be paid by the applicant and/or developer.
In London there are two types of CIL: Mayoral CIL and Borough CIL.
The Mayoral Community Infrastructure Levy (CIL) will apply to most new developments in London granted planning permission on or after 1 April 2012. The Levy is a non-negotiable payment which will raise money towards Crossrail. There are exemptions but this should be discussed with the relevant local planning authority at the earliest opportunity. Further advice on the use of planning obligations in the funding of Crossrail and the Mayor's Community Infrastructure Levy (CIL) can be found here.
Local authorities set their own Borough CIL charging schedules, stipulating the level of charge for each land use, in which areas, and indicating what the spending priorities will be. The money collected is used to contribute towards funding infrastructure required to support development promoted through a borough's Local Plan.
CIL is different to s.106 in that it is levied according to a published tariff schedule. Once a borough CIL is implemented, an s.106 agreement can still be negotiated, but s.106 funding will only be eligible for aspects which have not been included in the CIL charging schedule, and will be restricted to site-specific measures.