We have just had an interesting discussion with a few friends about CIL. One of the things we talked about was this. Draft Reg 94 will convert the policy tests for s.106 agreements into legal requirements. That will mean that a s.106 which strays beyond the tests is unlawful. In turn, the planning permission which is released by the unlawful s.106 will be vulnerable to successful judicial review because the planning authority will not be able to enforce delivery of the items the s.106 secures, which were a factor in the decision to grant. This is a serious new weapon in the objectors' armoury.
So does this make CIL more attractive? There wouldn't be any worries about whether the tests are met. Superficially it sounds good, but I can see it being said that in the case of EIA development there's a real problem. You have to consider whether there will be likely significant effects. Some of the effects will not be significant because of, or be mitigated by, infrastructure covered by CIL rather than by the s.106. But what happens if that infrastructure doesn't come forward? Or if there's uncertainty? It makes it more difficult to say there are no likely effects if the delivery of the infrastructure covered by CIL is not likely.
And in fact isn't it still an issue for ordinary, non-EIA, development. Because if the expectation of the infrastructure is a factor in the grant of permission but it's not likely to be delivered at the right time, or at all, will it not be argued that the planning authority acted irrationally, or failed to take account of a material consideration, the likelihood of non-delivery?
