Following on from our previous article "Small sites affordable housing exemption restored" here Bob Daniel goes into more detail about the High Court ruling.
In November 2014, housing minster Brandon Lewis announced, in a Written Ministerial Statement (WMS), the policy excluding housing developments of 10 units or 1,000sqm or less from the need to provide, or contribute towards, affordable housing (with a lower threshold introduced in rural areas).
The Councils strike back
In July 2015 West Berkshire District Council and Reading Borough Council succeeded in the High Court in challenging the Statement. Their challenge, motivated predominantly by the potential loss of affordable housing, was made by the Councils on several grounds, including:
- Inconsistency with the statutory planning regime,
- Failure to take into account necessary material considerations,
- The consultation upon the proposals being legally inadequate; and
- That the Secretary of State had failed to properly discharge his duties under the Equality Act 2010.
2-1 to the WMS
The Court of Appeal has now decided that all four grounds of appeal succeed and the appeal must be allowed, therefore reversing the High Court’s decision to quash the policy.
The technical bit
Following the judgement the government announced that the requirement not to provide affordable housing on sites of less than 10 houses had been restored. However the relevant amended paragraphs have not yet been re-incorporated in PPG, leaving the policy once again in a certain amount of limbo.
This will not be the end of the matter. Although the WMS has been found not to be unlawful it still only needs to be taken into account as a material consideration when considering planning applications. Some Local Authorities will doubtless therefore claim that their requirement to provide affordable housing out-weighs the guidance in the WMS. In that case they may still require an affordable housing contribution / provision in a s.106 Agreement as condition of granting a planning permission, taking the view that if the developer will not agree to that they can test the policy at appeal
What does the future hold
Immediately after the Court of Appeal judgement was handed down the new Housing and Planning Act which was given Royal Assent. The Act (yet to be published) gives the government the power to publish regulations prohibiting certain contributions, although the precise form of the regulations is still uncertain. There will though be specific protection for rural areas and therefore for development sites in national parks and areas of outstanding natural beauty (AONBs) and rural exception sites, Councils may still be able to require affordable housing contributions if they are able to provide evidence in their development plan to support that.
This is a complex area and Boyes Turner’s specialist land development team are uniquely positioned to assist with their expert knowledge of all aspects of property development gained through many years’ experience of advising landowners and property developers on complex land acquisitions and disposals.
For more information please contact Bob Daniel at [email protected] or on 01189 527 246.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.