The pooling restriction removal and what it changed

Until 1 September 2019, a local planning authority could not use more than five separate planning obligations entered into on or after 6 April 2010 to fund a single infrastructure project or type of infrastructure. That was the pooling restriction, sitting in regulation 123(3) of the Community Infrastructure Levy Regulations 2010, and it shaped how councils asked for section 106 money for a decade. The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 removed it, along with the requirement to publish a regulation 123 list.

Consultants who trained after 2019 sometimes assume contributions were always freely poolable. They were not, and the residue of the old rule still turns up in older agreements, in local plan viability evidence and in the way some authorities structure their asks.

What the restriction actually did

The rule counted obligations, not money. Five obligations towards a named secondary school expansion, and the sixth site could not contribute at all, however modest its contribution or however obvious the need.

Authorities dealt with that in three ways, all of them awkward. Some defined infrastructure projects narrowly so that each contribution went to a different project, which produced a proliferation of tiny named schemes. Some counted carefully and refused contributions from later sites, then faced the argument that the development was therefore unacceptable in planning terms with no means of making it acceptable. Some brought forward a CIL charging schedule specifically so that pooled infrastructure could be funded through the levy instead.

The regulation 123 list was the other half of the mechanism. An authority charging CIL had to publish a list of the infrastructure it intended to fund through the levy, and it could not then seek section 106 contributions towards anything on that list. The purpose was to stop developers paying twice for the same item.

Why it went

The restriction had become a source of delay and of arbitrary outcomes, and CIL adoption had been slower and patchier than expected, so the mechanism it was supposed to complement often did not exist.

The 2019 amendment did three things at once. It removed the pooling restriction, it removed the requirement for a regulation 123 list, and it removed the bar on using both CIL and section 106 to fund the same item of infrastructure. Taken together, that gave authorities a free hand on how to assemble funding for a given project and moved the control from a numerical cap to a transparency duty.

What replaced the regulation 123 list

Infrastructure funding statements. Any authority that charges CIL, or that has received or holds section 106 contributions, must publish one annually by 31 December, reporting on the previous financial year.

The statement has to set out what was collected, what was spent, what is held and what remains to be spent, along with a report on the infrastructure the authority intends to fund. It is a retrospective account rather than a forward commitment, which is a real difference from the old list. A developer can no longer point to a published list and say the item is CIL-funded so no section 106 contribution is payable.

What you can do instead is read the statement and see what the authority has actually collected and spent against the item it is now asking you to fund.

Contributions towards shared infrastructure now

The practical effect is that small sites can contribute to large projects again. A cluster of nine-unit schemes in a village can each put money towards the same primary school expansion, the same off-site footway, the same play area. Before 2019 the tenth one could not.

That has not made every request lawful. The tests in regulation 122(2) are untouched, and they remain the real control:

1. The obligation must be necessary to make the development acceptable in planning terms.
2. It must be directly related to the development.
3. It must be fairly and reasonably related in scale and kind to the development.

Those tests are statutory, so a contribution failing any of them cannot be taken into account in the decision even if the applicant offers it. The removal of pooling widened what an authority may collect; it did nothing to widen what it may require.

The argument worth running has therefore shifted. Before 2019 you could sometimes defeat a request by counting obligations. Now the argument is about necessity and proportionality, and it is won with evidence: capacity data for the school, trip generation for the junction, catchment data for the open space.

Where the money shows up

Read the infrastructure funding statement before the pre-application meeting. Three things are worth extracting:

• Whether the authority is holding unspent contributions towards the item it is asking you to fund. Large unspent balances weaken the necessity argument.
• Whether contributions have been returned to developers because they were not spent within the agreed period. That tells you how realistic the delivery programme is.
• Whether the authority charges CIL as well, and if so how the two are being used on comparable sites.

Where an authority is both charging CIL and seeking a section 106 contribution for the same item, ask how double payment is being avoided. It is now lawful to use both, but a request that has the applicant funding the same bus service twice fails the scale and kind test.

Older agreements repay reading as well. A deed completed before September 2019 may contain drafting designed around the cap, such as an obligation framed as a contribution to a narrowly defined project that nobody would define that way today. Where you are varying such a deed, the narrow definition can be the thing preventing the money being spent on the wider scheme it was always meant for.

Reading a charging schedule properly is a separate skill, and the article on CIL charging schedules, zones and indexation sets out how the rates and the annual indexation actually work.

What changes in a negotiation

The removal of the cap did not make obligations easier to resist. It made the evidence argument the only argument, and evidence takes longer to assemble than a count of signed agreements ever did. Three habits are worth adopting.

Ask for the evidence behind each head of terms, in writing, early. An authority that cannot produce capacity data for the item it wants funded has a problem under regulation 122, and it is better to find that out at pre-application than at committee.

Offer contributions in a form that is deliverable. Trigger points tied to occupation rather than to the start of works, index-linked to a named index with a stated base date, and with a repayment clause if the money is unspent after a defined period.

Where the total package threatens deliverability, put it in a Viability Assessment rather than arguing it informally. The Planning Practice Guidance expects viability to be addressed at plan-making stage, so an application-stage case needs to explain why this site departs from the assumptions in the plan.

The wider reform picture is still unsettled. The Levelling-up and Regeneration Act 2023 contains powers for an Infrastructure Levy intended in time to replace much of the current system, and as at September 2026 those powers have not been brought into general force. Treat anything you read about the levy as a proposal rather than as the law, and follow developments on the planning law updates timeline.

For the supporting documents that accompany an obligations-heavy application, browse the report types by category.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.