Reversal of Affordable Housing Guidance

Karren Mutton, Freeths, Nottingham

In the recent ConsortEM Summer Newsletter we highlighted the problems being faced by local planning authorities by the introduction of the Vacant Buildings Credit, which followed the imposition of thresholds for seeking affordable housing contributions.  We told you to ‘watch this space’ and indeed there has been an abrupt change to the content of the National Planning Practice Guidance.  Following the decision of the High Court in the case of West Berkshire District Council and Reading Borough Council v Department for Communities and Local Government ([2015] EWHC 2222 Admin) on Friday 31 July paragraphs 012—023 of the guidance on planning obligations was noted to be removed overnight.

The case was brought by two local authorities concerned at the imposition of thresholds below which they could not seek affordable housing, which would have a significant impact on their achieving the objectively assessed housing needs for affordable housing set out in their Development Plans, and as required by the NPPF. The lengthy judgment, extending to 62 pages, concluded that the Written Ministerial Statement and subsequent changes to national planning policy effectively amounted to an express direction to decision makers to disregard elements of their adopted plans.  This was incompatible with the statutory framework of the Town and County Planning Act 1990 and Planning and Compulsory Purchase Act 2004 and therefore unlawful. The decision was also critical of the consultation exercise undertaken by the Government before changing the policy content, and its failure to take account of what were termed ‘obviously material’ considerations, including the consequences of the change in policy on the supply of land for, and thus delivery of, affordable housing.

Whilst it did not go so far as quashing the initial Written Ministerial Statement, the Court declared that the policies in the Written Ministerial Statement must not be treated as a material consideration in the development management and development plan procedures and decisions or in the exercise of powers and duties under the Planning Acts more generally.  The changes to the NPPG effected following the Statement are now being reversed.  Local Planning Authorities are therefore back to ‘business as usual’ in assessing applications for planning permission against their local plan policies.  Whilst there will inevitably be difficult discussions now to be had with applicants whose schemes had progressed in reliance on the change in policy, this will hopefully be outweighed by the certainty provided by the decision and the ability to secure affordable housing to satisfy locally identified needs.