The Government has won its appeal over planning policy relating to demands for affordable housing on small sites
This week the Secretary of State for Communities and Local Government won the appeal it lodged to the High Court over a ruling that a planning policy issued in relation to affordable housing and small-scale sites was unlawful. The policy was initially announced in a written ministerial statement made in Parliament on 28 November 2014 and related to housing developments of 10 units (or 1000 sq m) or less which would be excluded from affordable housing levies and tariff based contributions. A lower threshold was to be applied in designated rural areas, National Parks and Areas of Outstanding Natural Beauty.
Mr Justice Holgate upheld a challenge to the written ministerial statement brought by West Berkshire and Reading Councils on the basis that it was inconsistent with the statutory planning regime, the Secretary of State had failed to take into account necessary material considerations and that there had been inadequate consultation over the proposed changes. However, the Court of Appeal (in a joint ruling from Lord Justice Laws and Lord Justice Treacy, with the Master of the Rolls agreeing) has concluded that all grounds of appeal should succeed. In a statement the two local authorities who had challenged the Secretary of State said that they were disappointed by the result and were considering their options as a matter of priority with regard to appeal.
This judgement may open the door again for those wishing to develop smaller sites but have simply no way of delivering viable development with such challenging locally adopted planning policy expectations for affordable housing which, locally, can exceed a third of the total number of dwellings being developed. Such expectations are clearly having an impact on housing delivery at the very time we face a chronic shortage. For now, we must stress that there is a possibility of a further appeal by the councils to the Supreme Court. It is also a fact that the minister’s original policy was withdrawn after the High Court order quashing it, so it is for the minister to decide whether to publish it again, and of course when to do so. A spokesman for the Department for Communities and Local Government said it would not expand on a statement on the Court of Appeal result at this stage and that any further information on the policies would be announced “in due course”. However, in reaction to the ruling, housing and planning minister Brandon Lewis said it restores “common sense”. He added: “This will now mean that builders developing sites of fewer than ten homes will no longer have to make an affordable homes contribution that should instead fall to those building much larger developments.”
For the moment, however, the policy does not exist in legal terms. We’ll keep you posted!