Technical consultation on the Infrastructure Levy - Law Society response

The Department for Levelling Up, Housing and Communities' consultation sought views on the Infrastructure Levy.

The Infrastructure Levy is a reform to the current system of developer contributions (Section 106 planning obligations of the Town and Country Planning Act 1990).

It replaces the current system with a mandatory and streamlined Infrastructure Levy.

Summary

Our response in the technical consultation papers includes:

• recommendations against the prospect of communities having development imposed on them, without securing that the money collected by local authorities is spent on benefits for those communities affected rather than diverted to fund ordinary services (or potentially never spent at all)
• recommendations to ensure that communities who could be adversely impacted can challenge the operation of the scheme. The proposals change the scheme from being a local, accessible process to being centrally controlled. This may mean that communities are excluded from the process which resolves disputes between local authorities and developers. Therefore vulnerable and disadvantaged communities may be disproportionately affected impacting access to justice
• there is a need for clarity as to what an “integral” infrastructure is – this needs to be predictable, certain and consistent between different authorities. Without this, the aim of removing “a substantial area of negotiation” will not be achieved
• the thresholds set for the ‘infrastructure in-kind' are all too high which could affect the viability of smaller schemes
• in defining the use of section 106 within the three routeways the consultation does not mention how issues would be addressed to enable requirements currently dealt with via planning conditions. This creates risks
• charging the Levy on final sale gross development value of a scheme may have practical issues. This approach has the scope for extensive gamesmanship which may undermine the whole system
• it is flawed to calculate contributions based solely on movement in gross development value. This is because, without also taking into account shifting costs, large payments may be generated without there being any profit to pay them with
• the strategic spending plan does not address the disconnect between the community infrastructure levy, the payment of contributions by developers and the delivery of the relevant infrastructure