The Community Infrastructure Levy: Confining Discretionary Activity at Local Level?

Abstract

Although the rules/discretion distinction has been visited by legal scholars many times, what remains less well-developed is enquiry into the effects of attempts to constrain discretion by imposing rule-based structures in regimes founded on high levels of discretionary activity. In the land-use planning domain, for reasons of technical complexity and informational asymmetry, discretion is given to local authorities to devise solutions allocating appropriate uses of land. The legal framework contains an array of discretionary powers (ranging from the high-level allocation of land uses, to how planning applications are decided), which include in the latter case peripheral (indeed penumbral) forms of bargaining and negotiation that are integral to the statutory scheme. The Planning Act 2008 includes, however, a shift in the form of the Community Infrastructure Levy (CIL), which attempts to limit an exercise of discretion locally through law. The CIL is a scheme obliging local authorities to impose a 'tax' on new planning development to recoup the cost of infrastructure provision rather than negotiating solutions with individual developers on an ad hoc basis. Not only does this represent a departure from a use of discretion to secure equivalent benefits (which have historically been obtained through negotiation), it provides also an illustration of the effects of attempting to constrain one of the many forms of discretionary activity in the context. The provisions, while ostensibly limiting local discretion, point to a temporal shift in its locus. This paper critiques the provisions of the Act as they relate to the CIL and, by referencing previous strategies adopted for a similar purpose, suggests that an imposition of fixed charging structures may have the effect of displacing rather than eliminating discretionary activity in particular negotiation and bargaining.

Keywords: Planning Act 2008, discretion, community infrastructure levy, planning law, local government, central/local relations.