Revisiting the rules. The pervasiveness of discretion in the context of planning gains: the case of the Community Infrastructure Levy

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The rules and discretion debate, to some, has long been exhausted and offers little to inform contemporary insights into the activity of public bodies exercising discretion in administrative law contexts. It seems that Davis’ thesis in his seminal book Discretionary Justice, at first glance, foreclosed any future discussion or insight into the topic by juxtaposing the two and, in fact, offering an either, or appreciation of the concepts. This may be inferred from the premise that discretion can be confined, constrained, or indeed eliminated only to be supplanted by more acceptable rule-based strategies, where the context demands. Using the community infrastructure levy (that instrument introduced by Government to confine local authority discretion in the recovery of those gains associated with land-use development) as a case study, it will be shown that in, contrast to an understanding that it is possible to replace discretionary activity by rule-based strategies, the substitution of one for the other can be fraught with difficulty. In juxtaposing the two, it is argued that no recognition is given to the pervasiveness or resilience of discretion and the implications of attempts at trying to eliminate it.
Original languageEnglish
Pages (from-to)643-661
Number of pages18
JournalPublic Law
Issue number4
Publication statusPublished - 1 Oct 2020


  • Discretion
  • Community infrastructure levy
  • land-use planning control
  • Governance

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