Small Site Affordable Housing Exemption – Consistent Inconsistency…

In May 2016, the Government reinstated rules exempting small sites from affordable housing obligations following the 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.

The reintroduction of the exemption was welcome news for small scale developers.  However, the Court of Appeal decision made it clear that the exemption, originally introduced in a Written ministerial Statement (WMS) and subsequently translated into Planning Practice Guidance (PPG), does not automatically override development plan policy, which remains the starting point for the determination of applications.

This left the door open for a number of local authorities to continued to seek affordable housing contributions on small sites in line with their development plan policies. However, when tested at appeal, it is becoming increasingly apparent that there is a lack of consistency in Inspectors’ determination of the relative weight that should to be afforded to local planning policy, where it conflicts with the WMS and PPG.

For example, Elmbridge Borough Council issued a statement in June 2016, which seeks to justify an exception to the exemption of small sites due to the specific circumstances of the Borough, namely the exceptionally high house prices and affordability issues in the Borough and the importance of small sites to delivering affordable housing.  The Council’s success at appeal has so far been mixed, with decisions of Inspectors backing the Council’s approach on three occasions, yet Inspectors finding in favour of the small scale affordable housing exemption on five other occasions.

Reigate and Banstead Borough Council issued a similar Position Statement in July 2016 again aimed at strengthening the justification for affordable housing on small sites but, in this instance, a recent appeal against the Borough was upheld and resulted in the award of costs against the Council.  Consequently, in November 2016, the Council resolved to take into account the implications of government policy on affordable housing as a material consideration when considering all future planning application.

In Brighton & Hove, two Inspectors issued decisions within weeks of one another, in which they came to opposing conclusions as to whether the Council could seek an affordable housing contribution.

The London Borough of Richmond has experienced the same kind of inconsistency, seeing four appeals in which the Inspector’s decisions supported their requirement for affordable housing, and two in which Inspectors ruled in favour of the WMS exemption, with costs awarded against the Council in both cases.  We understand that the Borough has recently written to PINS highlighting the apparent lack of logic in determining why the Inspectors came to differing views.

The Government originally attempted to introduce the exemption as a means of relieving the ‘disproportionate burden of developer contributions on small scale developers’. Unfortunately, these inconsistent appeal decisions leave small scale developers in the uncertain position of not knowing the weight which will be afforded to local plan thresholds.

We are expecting a number of other appeal decisions over the coming months and will continue to keep a close eye on this issue. If you have any queries regarding the provision of affordable housing, please feel free to contact one of the Firstplan team.