Since the Community Infrastructure Levy (CIL) regulations were introduced in April 2010, developers and local planning authorities have become more disciplined in ensuring that section 106 obligations sought or offered comply with regulation 122. 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.

It is now usual practice for planning applications to be supported by statements justifying the obligations proposed and their compliance with the CIL regulations. Anecdotally, at least, this has started to cut back the scope of community benefit agreements. However, the recent appeal decision on Barratt Southern Counties' Bishopdown Farm scheme in Salisbury (APP/Y3940/A/10/2143011) raises 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. The section 106 agreement secured various contributions reflecting the cost of laying out and maintaining the park and transferring it to the council.

At the inquiry, 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. He considered that if the park had not formed part of the planning application, the application could not have been refused on that basis.

In his view, the country park had a limited direct relationship and its provision was not fairly or reasonably related in scale to the proposed scheme. The obligation therefore failed to comply with regulation 122 and could not be taken into account as a reason to grant permission, he concluded. 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 [1993] and is simply the planning system finding yet another way to escape the puritan 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?