My esteemed colleague Simon Ricketts and others have already put pen to paper in comment on the recent (last week!…Ed.) decision of the Planning Court in the University Hospitals of Leicester NHS Trust case. See here.

Can you use section 106 to fund the NHS (or, by extension, other public services)? The general answer is no, because the NHS and said other public services are funded by central government and not through the land use planning system.  But what if, as a result of inadequate government funding or otherwise, a particular development had a demonstrable, materially adverse impact on the capacity of the NHS or other public service locally.  What then?  On the face of it the three tests for planning applications (necessary to make the development acceptable in planning terms; related to the development in scale and kind; reasonable) might in theory be met?

Can section 106 step Into The Gap?

The answer (as I read the judgement): it would depend on the facts of the case. The court didn’t rule it in and didn’t rule it out.  Some kinds of public services will perhaps more obviously be un-fundable using section 106 (like paying state benefits of new residents who qualify for them) but in the case of services like healthcare provision section 106 might at least be capable of stepping in to fill a funding gap. (Doctor, doctor, can’t you see I’m burning, burning!)

The same is more true of CIL and for that matter is even more true (and then some) of the Government’s proposed Infrastructure Levy.

CIL can be used (must be used, actually …Ed.) for funding the provision, improvement, replacement, operation or maintenance of “infrastructure”.  Infrastructure (section 216(2) of the Planning Act 2008) means: roads and other transport facilities; flood defences; schools and other educational facilities; medical facilities; sporting and recreational facilities; open space.  It seems to me therefore that CIL can be used to fund the operation of medical facilities and educational facilities.

Under the Levelling up and Regeneration Bill in its current form, the things the Infrastructure Levy could be used to fund are even wider than that because IL could be spent not only on “infrastructure” as the LURB more widely defines it, but also could be passed to a third party to fund “anything else that is concerned with addressing demands that development places on an area” (nerds – please refer to paragraph 204O of Schedule 11 to the Bill).  This was a red-hot topic in the Commons committee cycle.  It will be interesting to see what happens in the Lords.

By coincidence, I see that the first of the Lords committees started on Monday.

We are detective.