It is all starting to look careless. For the third year running, planners and lawyers are facing a consultation on changes to the Community Infrastructure Levy (CIL).
While most of the amendments to the regulations and guidance put forward by the Department for Communities and Local Government last month are welcome, they still do not deal with structural imbalances in the mechanism.
There have been two broad schools of criticism of CIL. The first argues that development charges have failed four times since 1947, are wrong in principle and impose a real drag on economic growth. If the levy survives, they will be proved wrong. The second group of critics accepts that a clear, straightforward development charge could be a real benefit. However, this group was frustrated by the way in which CIL was originally structured.
The present consultation proposals tease but do not satisfy. Infrastructure delivery is meant to be at the core of CIL. Developers contributing towards off-site infrastructure should be confident that this infrastructure will actually be delivered. In fact, however, the system provides no guarantee that infrastructure will be provided, nor any programme for spending CIL receipts. Indeed, negative conditions can still be imposed preventing occupation of a development until CIL-funded off-site infrastructure has been provided.
In future, more information will be provided about the types of infrastructure that CIL proceeds will fund when charging schedules undergo examination. There will be tighter restrictions on changes to the lists of requirements prepared by charging authorities. Nothing, however, will prevent CIL being spent on other infrastructure not covered in the lists. The share of CIL allocated to local communities - up to 25 per cent of receipts - may not even be spent on infrastructure.
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 it will be very difficult for objectors to demonstrate a failure to achieve this balance. Examinations will remain one-sided.
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.
This article was published in Planning Magazine, Friday, 17 May 2013