Do you remember the days when we all thought that the human rights legislation would so invade planning that we wouldn't be able to move for human rights challenges? And how we had to find something else to angst about after the Alconbury case in 2001? Well I sense the same feeling now in relation to CIL Reg 122 and what we have been thinking was the scope for planning permissions to be quashed on account of some perceived failure to comply with the requirements of that regulation.
Since the arrival on the legislative scene, in 2010, of CIL Reg 122 there has been some expectation that a number of planning permissions would be vulnerable to successful challenge. LPAs could feel more relaxed after the Welcome Break case in 2012 found that the exercise under Reg 122 is essentially a judgement call for the decision maker - provided the decision maker stays on the right side of the "Wednesbury unreasonable" line.
Well the position on CIL and the exercise of judgement has been made even more clear in the case (April 2014) of R v Chorley BC and others (oao Fox Strategic Land and Property Ltd).
Here, Fox Land challenged a charging schedule on a number of counts basically aimed at unpicking the CIL rate of £65 for residential development. The Court could hardly have been clearer in its judgement in upholding the examiner's findings and anyone considering bringing (or defending) a claim in similar circumstances should read this judgement.
Interestingly, the Court also gave an indication of whether, had the decision been different, it would have exercised its discretion to quash the charging schedule. Although not being drawn specifically, the judge did say "I cannot imagine there would be many cases, if any, in which case a claim.... is held well founded and the Court is nevertheless persuaded that the charging schedule should not be quashed". So if a challenge is successful, it is most likely the charging schedule will fall. There is also a statement by the judge that the fact the claim was brought on the final day of the 6 week period was "regrettable" and gave the Council a fair reason to complain.