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Judge quashes government policy on affordable housing exemption thresholds

by on August 6, 2015

Two Berkshire councils have won a landmark High Court challenge over government policy brought in last November which set a threshold on the size of developments beneath which planning authorities should not seek affordable housing contributions through section 106 agreements.

That has now been quashed as has the vacant building credit policy. Under those provisions affordable housing requirements were reduced according to the extent to which a housing proposal involved the re-use or redevelopment of vacant buildings.

As a result of last week’s ruling by Mr Justice Holgate some 12 paragraphs have been removed from the National Planning Policy Guidance.

Last November, planning minister Brandon Lewis announced the new policy on affordable housing provision in a ministerial statement which set a threshold of developments of 10 homes or fewer. In designated rural areas, the threshold was set at five homes or fewer.

West Berkshire Council and Reading Borough Council successfully joined forces to challenge the proposal.

The judge agreed with the councils that the consultation process over the policy had been unfair and unlawful. He argued that there was a failure to take into account “obviously material” considerations when promulgating the policy, including the full implications for the supply of affordable housing land.

Tony Page, Reading’s lead councillor for planning, said: “This judgment is excellent news not just for Reading and West Berkshire councils but for all the people looking for affordable places to live.

“There is an acute and increasing need for affordable homes in Reading, which is demonstrated by the fact there are around 10,000 people on our housing waiting list, and the changes to the planning system would have made matters worse.”

Alan Law, West Berkshire’s executive member for planning, said: “The decision to legally challenge the government on this issue was not taken lightly.

“The judgment… confirms that the council were fully justified in challenging this policy change in order to deliver much needed affordable housing and safeguard funding for critical infrastructure such as education.”

Planning barrister Jenny Wigley of No. 5 Chambers commented: “The practical implications are of immediate effect to developers’ negotiations. Following the judgment, the government has announced that the relevant paragraphs of the NPPG will be removed and this is now reflected on the NPPG website.

“Accordingly, with immediate effect, developers will be unable to rely on those paragraphs in negotiations as to affordable housing and tariff style infrastructure contributions. The vacant building credit will also no longer be applicable.”

A Department for Communities and Local Government spokesman said: “We are disappointed by the outcome of the judgement and will be seeking permission to appeal against the judge’s decision. This will have a disproportionate impact on smaller builders who are important in providing homes for local communities.”

View more information on the Planning Practice Guidance website

Roger Milne

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