Small Site Affordable Housing Exemption Reinstated

Following the recent Court of Appeal decision in the case of West Berkshire District Council and Reading Borough Council v. Secretary of State for Communities and Local Government, national Planning Practice Guidance (PPG) has been updated to reinstate policies on the Vacant Building Credit and local planning authorities not requiring small sites to make s106 contributions for affordable housing.

The story so far…

August 2015 saw the Council’s of West Berkshire District Council and Reading Borough Council succeed in a High Court ruling following a challenge of the Government’s exemption for affordable housing requirements on small development sites of ten units or less and the introduction of a Vacant Building Credit (VBC), which were introduced in 2014 in a Ministerial Statement and included in the PPG.   The High Court decision led to the subsequent removal of these policies from the PPG in 2015 .

The SofS appealed against the High Court ruling and May 2016 saw the Court of Appeal find in favour of the government’s approach.  The Court of Appeal upheld all four appeal grounds brought by the Secretary of State, namely;

1.     The exemption and VBC policy expressed could not be faulted on grounds that it did not use language which indicated that it is not to be applied in a blanket fashion. Furthermore, policy may overtake a development plan.

2.     It was accepted that statutory planning context does constrain the Secretary of State and would prevent the introduction of planning matters which were not proper planning considerations.

3.     There was no unfairness in the procedure adopted by the Secretary of State and the relevant paragraph in the ministers response on consultations represented a balance of the various submissions;

4.     There was no breach of the public sector equality duty.

The Court of Appeal decision effectively reversed the judgement by the High Court.  Despite the fact that West Berkshire and Reading Council’s have 28 days from the date of the decision to appeal to the Supreme Court, the Government has wasted no time in updating the online PPG to restore the statements relating to affordable housing thresholds and VBC which had been previously removed (specifically paragraphs 015, 016, 017, 019, 020, 021, 022 and 023 of the document are now reinserted with the same wording from the 2014 Statement).

Questions will no doubt be raised over the weight which local authorities should attach to this guidance, but the reintroduction of this policy is nonetheless welcome news for small scale developers.

If you have any queries regarding the new guidance, please feel free to contact one of the Firstplan team.