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In Britain it is often the developers who offer to enter into planning

obligations to provide community benefits. To be sure, the local authority may have, "wish list": however, it is the developers who pick which and how many of those items to fund. In the cases which have ended up in court have not involved planning obligations imposed by local authorities. Certainly there is a process of negotiation, nevertheless, it appears to be developers

rather than the local authorities who are taking the initiative. This would seem to limit offers of planning gain coming from those developers who can be assured of a large enough profit in a short enough period of time to make

it economically feasible. The geographic areas most likely to profit are those which are growing already and where there are profits to be made. In

economically depressed areas any development may be seen as "planning gain." If choices between competing developments are based on the

obligations they offer, in the long run it could also reduce competition to those developers who are able to those absorb the costs.

In one way the situation in the United States is quite opposite. Most the exactions are a condition of the grant of planning permission, as there it is the local authority who determines what the developer is to contribute. In the United States those contributions are often arrived at though some

predetermined formula. For a house of size A, a payment of $B will be made to fund schools, parks, roads and other public facilities. Developers, rather than offering to build roads, often complain of having to contribute to them. This is not to say that developers do not make offers to fund public facilities. The practice seems less common than in Britain, in part because formulas are in place. Also, with the appropriate zoning, any amount of development can be built. There is no competition over who builds the one superstore that the plan calls for. At a slightly different level there may be a limit to the amount of land that a local authority is willing to rezone. However, rezoning requests are usually dealt with on a case-by-case basis rather than the total amount of land be rezoned to a specific zoning category during the life of the plan. Also zoning categories can allow a very wide variety of uses, making it more difficult to control the amount of any specific use.

The different solutions to the problems which come from the two countries, reflect the differing nature of the planning and legal systems and what

constitutes a legitimate contribution. Taken at face value, the tests laid down by the United States Supreme Court have applicability on both sides of the Atlantic. Examining the tests themselves can provide a basic framework for determining an equitable formula for developer contributions. These

decisions can be summarized as a three part test. First a condition should serve a legitimate government purpose. Second, there should be a nexus, or connection, between the impacts of the development and the contribution or condition. Third, the contribution must be roughly proportional to the impacts of the development. The local authority should not become greedy, nor should the developer attempt to buy planning permission. These tests are strikingly similar to the three Newbury \es\s: that a condition must have a

planning purpose; be fairly and reasonably related to the development and not be manifestly unreasonable (AER, 1980, 731).

The difficulty with the Supreme Court decisions, both in terms of their impact on planning in America and the relevance for planning obligations in Britain, arises over the way they chose to apply the test. In keeping with the shift of the political winds to the right in America, a more conservative Supreme Court (three of its nine members were appointed by Ronald Reagan) has interpreted these tests in such a way as to tip the balance in favour of the protection of individual property rights. The ultimate irony will be if this strategy backfires due to its excessive costs to the taxpayers. This is already beginning to happened in those states which have held référendums on takings legislation which has have been overturned by the voters due to their high costs. Property owners may find that when their neighbours are also subject to less stringent regulations and reduced contributions they, as members of the larger community, may suffer (Fulton, 1991, 192).

In their discussions in the Witney case, the House of Lords did clarify some of the issues surrounding planning obligations, while leaving others

unanswered. The decision did confirm that the rules of lawfulness which apply to planning conditions do not apply to planning obligations. Section 106 does not require that a planning obligation be related to any particular development. A planning obligation must be for a planning purpose and not

Wednesbury unreasonable. A planning obligation that has no connection whatsoever with the proposed development would not be a material consideration. What the decision does not discuss is what constitutes a sufficient connection between a planning obligation and the proposed development. Rather, there was greater concern that once a relationship had been found, it does not matter that the obligation on offer is not

necessary to solve a planning problem or that it is not proportionate to the external cost of the development. Apparently, the reason for not wanting proportionality to play a part in determining whether or not a planning obligation is a material consideration, was that it would involve the courts in determining the merits of planning decisions. This was why the American "rational/essential nexus," and the advantages and disadvantages of the "rough proportionality" test were not examined. Also unresolved was the possibility that a local planning authority and the Secretary of State for the Environment could take opposite views on how much weight to give a planning obligation, resulting in a two-tier approach. The justification being

that the weight given a planning obligation falls within the area of discretion granted by Parliament (Kirkwood, 1995, 602-3).

As was pointed out by the Lords, the courts in America, while not deciding the merits of planning decisions, do play a larger role in determining the merits of planning decisions than do the British courts. No doubt, part of the reason for this is that there is no American counterpart to the Secretary of State for the Environment to review local decisions or provide advise on how the law should be interpreted. The more proscriptive nature of the decisions of the United Sates Supreme Court also reflects a rather fundamental

difference in the nature of the two legal and political systems. The courts generally play a larger part in American life than they do in Britain.

Americans are more likely to resort to legal action when they are not satisfied with a planning or other decision. The American system is such that the courts are the recourse for the dissatisfied and so are seen as the arbiter when a solution can not be reached between the parties concerned. The American system is often held up as being characterized by certainty rather that the discretion of the British system. To a large extent this is true. Within a certain zone only certain uses are acceptable and there are definite standards, for example, of height, setback and parking that must be met. At another level the British system seems to provide a greater deal of certainty. In America planning decisions are almost always taken at local level but with regard for the state and federal constitutions, state enabling legislation and relevant court decisions. They are, however, primarily local decisions and there is very little likelihood of review at a higher level. Even if a decision is reviewed it is only at the United States Supreme Court the standard applied is the same regardless of where the case originated. By contrast, in Britain there is a national planning system administered locally. Again, the vast majority of decisions are taken at local level. However, review happens more frequently and when it does it is always by the Secretary of State for the Environment. Review by a single body increases the degree of

consistency, not only in those cases that are reviewed but also at local level as a review is always a possibility. Additionally the Secretary of State for the Environment provides policy guidance, which while it may in some cases be contradictory, but is the same for every local authority.