Testing a contribution request against regulation 122

The regulation 122 test is short enough to quote and strong enough to defeat a contribution request that has grown out of habit rather than evidence. Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may only constitute a reason for granting planning permission where it is necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to it. All three limbs have to be satisfied. Fail one and the obligation cannot lawfully be a reason for granting permission at all.

That is a statutory test, not a policy preference, and it applies to each obligation separately rather than to the package as a whole. Which is the practical opening: ask the officer to justify each item on its own.

The three limbs and how they are applied

Necessity is the limb that does most of the work. The question is not whether the money would be useful, or whether the council's service would welcome it. It is whether the development would be unacceptable in planning terms without it. If the answer is that the scheme would be acceptable anyway, the obligation fails.

Directly related asks whether the obligation addresses an impact of this development. A contribution to a project that would have happened regardless, or that serves an area the development's occupants will not use, struggles here.

Fairly and reasonably related in scale and kind is the proportionality limb. It covers both the amount and the type. A contribution ten times larger than the impact fails on scale. A contribution towards something unconnected to the impact fails on kind, even where the amount is modest.

Two points about how the test operates. It is a test on the decision maker, so it constrains what the authority can rely on rather than what an applicant may volunteer. And it applies at the point of decision, so an obligation that was justified when the policy was written may not be justified against today's evidence.

Asking for the evidence behind a request

Almost every argument is won or lost here, and the request is simple to make. Ask, in writing, for six things per obligation.

1. The adopted development plan policy that requires it, quoted.
2. The evidence base relied on, whether an infrastructure delivery plan, a capacity assessment, a standards document or a service business case.
3. The specific project or projects the money will be spent on, and their cost.
4. The calculation, showing how the amount was derived from the impact of this development.
5. Confirmation of whether the project is already funded from another source, including the levy.
6. The mechanism by which the money will be spent and the timescale.

Councils that have done the work supply this in a day. Councils that have not will send a tariff table and a sentence of policy, and that response is itself useful evidence.

Where a supplementary planning document sets the figure, remember that an SPD cannot introduce policy that the plan does not contain. A tariff in an SPD which the plan never authorised is doubly vulnerable: on its own weight, and on regulation 122.

Infrastructure funding statements are published annually and record what was collected and what was spent. A statement showing several years of unspent receipts for the same infrastructure type is a strong answer to a necessity argument for more of it.

Pooling, infrastructure lists and double charging

The old restriction limiting the number of obligations that could be pooled towards a single project was removed in 2019, and it is sometimes still cited. It no longer applies, and an argument built on it will fail.

What replaced it matters more. Charging authorities publish an infrastructure list setting out what the levy will fund, and the expectation is that authorities do not seek a section 106 contribution for an item the levy is already funding. Where a request duplicates something on that list, say so and cite the list.

Check the levy position on your own scheme at the same time. On a development liable to the levy, part of the infrastructure impact is already being paid for, and a request that ignores that is asking twice.

Requests that fail on scale or kind

The recurring failures, in rough order of frequency:

• Per-dwelling tariffs applied to a use with a different impact profile, such as a retirement scheme charged the family housing education rate.
• Education contributions where the relevant schools have surplus capacity, on projections the authority holds but has not disclosed.
• Open space or play contributions on a scheme providing that space on site.
• Contributions towards a facility beyond the catchment the occupants will use.
• Town centre or public art contributions with no identified impact.
• Health contributions calculated from a formula unsupported by any capacity evidence for the relevant practices.
• Monitoring fees disproportionate to the obligations being monitored, though monitoring fees themselves are permitted.

Illustrative example: a 24 unit scheme charged a per-dwelling education contribution derived from the authority's standard formula. The published school place projections for the relevant planning area showed surplus primary capacity for the whole plan period. The contribution was withdrawn before the committee once the projections were put to the officer in writing. The circumstances are illustrative and used to show how the necessity limb is applied.

Affordable housing requests need care, because the policy requirement is usually properly evidenced and tested through the plan. There the argument is about viability rather than regulation 122, and it belongs in a Viability Assessment prepared to the recognised professional approach. Councils normally expect a suitably qualified author and professional review is strongly advised.

Making the argument in writing

Write it as a short annexe to the planning statement rather than as an email exchange, because an annexe survives a change of case officer and can be lifted into an appeal statement unchanged.

The structure that works: one page per obligation, setting out what is requested, the policy relied on, the evidence supplied, the evidence requested but not supplied, and the applicant's position against each of the three limbs, ending with what the applicant will agree to.

Tone matters more than most people expect. A note that concedes the obligations that plainly pass, and challenges only those that do not, is taken seriously. A blanket refusal to enter any agreement reads as posturing and hardens the officer's position.

Offer a unilateral undertaking covering the items you accept. That removes the risk that a refusal is founded on the absence of an agreement altogether, and narrows the dispute to the contested item. Our note on deferred contributions and indexation covers the drafting points worth pressing while you are at it.

Taking the point to appeal

If the authority refuses because the applicant would not agree a contribution the applicant says fails regulation 122, the appeal is about whether that reason for refusal stands.

The appeal documents need the correspondence: what was requested, what evidence was asked for, what was received. Include the authority's own published material, which is usually the strongest evidence available, and the infrastructure funding statement.

Consider costs. Guidance on appeal costs treats unreasonable behaviour as including failure to substantiate a requirement, so an authority that insisted on an unevidenced contribution and then failed to justify it at appeal is exposed. Flag the position early rather than springing it, because the prospect of a costs application sometimes produces a withdrawal.

The strategic judgement is separate. An appeal costs months, and on a small scheme the contested contribution may be smaller than the delay, which is the calculation set out in our note on viability review mechanisms where phased payments are an alternative to a fight.

What an inspector will do with it

An inspector applies regulation 122 directly and will say so in the decision. Where an obligation fails a limb, the inspector cannot treat it as a reason for granting permission, so the scheme is assessed as though the obligation were not there. If the development is acceptable on that basis, the appeal succeeds.

Inspectors are more willing to find against an authority on this point than officers expect, and they are equally willing to find that a contribution is properly justified where the authority has produced the evidence. The determining factor is almost always the quality of the authority's evidence base rather than the advocacy.

Put the regulation 122 analysis in the Planning Statement at application stage, not for the first time at appeal. An officer who has seen the argument, and had the chance to answer it, is more likely to drop a weak request than one ambushed by it after refusal.

This is general guidance, not legal advice, and the justification for any obligation turns on the authority's evidence and the adopted plan, so check the position with your local planning authority and a qualified professional before relying on it. PlanScope drafts planning statements and viability narratives structured to UK planning policy, with the evidence references flagged for you to complete. Browse all 66 PlanScope report types.

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