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Secretary of State for Communities and Local Government v West Berkshire DC and Reading BC [2016] EWCA Civ 441

Affordable Housing under fire?

The Court of Appeal has decided that the Government’s national planning policy of excluding “developments of 10 units or 1000 square metres or less” from affordable housing levies and tariff-based contributions was lawful.

The Government had considered that requiring developers of relatively small scale sites to make contributions to affordable housing was an excessive burden and was causing sites to remain undeveloped. As a result, the construction of new housing was falling below the level necessary to meet established need.

Two local housing authorities in south-east England considered that this policy would make it very difficult for them to meet their local affordable housing targets. Their view was that in areas of high housing demand such as the south-east there were very few stalled sites and therefore the removal of the requirement for affordable housing contributions on small sites would not in any way increase local housing supply but would simply generate greater profits for developers who would no longer be obliged to construct any affordable units. Holgate J agreed, holding that the Government’s policy was inconsistent with the existing planning regime, that the Secretary of State had failed to take into account material considerations, had failed to consult properly and had failed to consider the equality impact of the proposals.

The Government was successful on its appeal against all 4 limbs of Holgate J’s decision. It was considered that the Government’s policy did not amount to a blanket ban on the imposition of different requirements at local level and therefore did not conflict with the existing statutory scheme or the rule against fettering discretion. In deciding planning policy the minister is not required to have regard to any particular considerations – provided his policy does not frustrate the existing statutory provisions he has a free hand. The consultation had been perfectly adequate – it had afforded respondents the opportunity to put forward their views. The Minister was not required to adopt the replies of particular respondents. The Equality Act challenge was roundly rejected.

This decision highlights once again the drawbacks of a one-size-fits-all national planning policy. The Court based its decision partly on the fact that local planning authorities could, if they wished, set their own thresholds. But in reality it would be a brave local authority which departed from Government guidance as it would immediately leave itself open to challenge by an aggrieved developer. The fact remains that a policy designed to promote development in the North would in fact limit the construction of affordable units in areas of high desirability and expensive land values. This judgment will no doubt be cheered by developers but, for those promoting the development of affordable housing in affluent areas, the Court of Appeal has done them no favours.

James Browne / 6th Jun 2016


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