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Community Infrastructure Levy – the consultation proposals tease but do not satisfy

In the early summer, and for the third year running, planners and lawyers faced a consultation on changes to the Community Infrastructure Levy (CIL). While most of the amendments to the regulations and guidance put forward by DCLG were welcome, they still do not deal with structural imbalances in the mechanism. It still does not have a level playing field at examination. It is still to blunt in practice. It does not deal adequately with large sites. And sensible mechanisms for the actual delivery of infrastructure have yet to emerge.

We have been promised a wholesale review of CIL in 2015. Part of the present problem is that the original design of CIL was imperfect, largely in an attempt to make it easy to adopt and hard to abuse. Unfortunately, the imperfections have made it imbalanced. Over time, that imbalance will reduce confidence in the system and will give more power to those who have objected to CIL, as a matter of principle, from the outset.

Commitment to infrastructure delivery through CIL

The commitment to infrastructure delivery is important. Only if there is a clear infrastructure development plan can a charging authority meet the proposed new duty to “demonstrate” that it has struck an appropriate balance between the desirability of funding infrastructure and the effects on the economic viability of development. If authorities have to demonstrate an appropriate balance, this will empower examiners to interrogate CIL charging proposals rigorously. But in the absence of a clear commitment to deliver infrastructure, that can then be tested, it will be very difficult for objectors to demonstrate a failure to achieve this balance. Examinations will remain one-sided.

Prematurity goes back into the box

Under the plan-led system, it has been rare to see refusals of otherwise acceptable schemes on the grounds that they would prejudge the outcome of the plan-making process. The courts have historically made clear that plan preparation cannot be a rubber-stamp reason for refusal.

The NPPF addresses the weight to be given to emerging plan policies, but says nothing about prematurity. The government’s January 2005 guidance note The Planning System: General Principles, which survived publication of the NPPF last March, advises that refusal on prematurity grounds is “seldom justified” where a local plan is at the consultation stage and has no early prospect of submission for examination, recognising that the resultant delay in determining use of the land would be unacceptable.

Policy on prematurity concerns the crucial balance between planning and delivery. A loose application of prematurity objections flies in the face of the General Principles and the urgency injected by both the NPPF and the Planning for Growth agenda. The 2005 statement still sets the bar high for those seeking to postpone growth until another day.