Developers and local planning authorities have become more disciplined in ensuring that section 106 obligations comply with regulation 122, since CIL’s introduction. This requires obligations to be necessary and to have a direct relationship to the proposed development, both in terms of the nature of the obligation itself and in terms of it being proportionate to the scale of development.
The appeal decision on Barratt Southern Counties’ Bishopdown Farm scheme in Salisbury raised the issue of whether the regulation 122 test is an irrelevance when proposed community benefits are incorporated as part of an actual planning application.
Barratt’s application for 500 homes included 51 hectares of land to be turned into a country park. Opponents suggested that the country park was simply a sweetener to secure planning permission. The inspector concluded that the park was not necessary to make the housing development acceptable in planning terms. But the secretary of state disagreed, stating that the inspector had been “misguided”. The park was part of the application and the agreement simply provided for its provision and transfer into public ownership, he decided.
A cynic might say that this decision is simply another form of repackaging flexibility in planning obligations conferred by cases such as R v Plymouth City Council ex parte Plymouth and South Devon Co-operative Society  and is simply the planning system finding yet another way to escape the shackles that the CIL regulations and Circular 05/05 impose on development. If the Bishopdown Farm approach is followed, the death of section 106 obligations as we know them may not be imminent after all. But when the issue of “buying” planning permissions is a highly topical issue, particularly in light of proposed amendments to the Localism Bill, who guards the guardians?