Local authorities must judge whether schemes are likely to have significant environmental effects under EU environmental impact assessment (EIA) regulations. Additional infrastructure is often considered as a mitigating factor.
Section 106 agreements have commonly been used to ensure that infrastructure is provided. Grampian conditions preventing a start on-site until supporting infrastructure work is completed have also been used.
But CIL will result in councils providing infrastructure rather than developers. Mills & Reeve partner David Brock warned that this could create opportunities to challenge permissions. He said: "If you use CIL to provide mitigating infrastructure, is the local authority going to build it on time?"
Francis Taylor Building barrister Gregory Jones said: "If infrastructure mitigates the environmental impact of a development, it is strongly arguable that there must be a legally binding agreement for this to be provided."
PPS12 requires authorities to produce timescales for infrastructure delivery. But DLA Piper partner Howard Bassford argued that this will not satisfy EIA rules. He referred to a 1999 High Court ruling in Rochdale which ties consents to information provided in environmental assessments. This can only be achieved by conditions or section 106 agreements.
Critics have questioned whether councils can be relied on to provide infrastructure on schedule. The alternative scenario of developers paying for work through section 106 has led to fears of double charging.
"We need a system where a developer can provide infrastructure and get a discount on CIL," Eversheds partner Judith Damerell suggested. The British Property Federation has also pressed the DCLG for such allowances. "It makes sense to allow developers to provide works in kind," a spokesman said.