Conflicting opinions on small site Affordable Housing policy

13 Jan 2017

In November 2014, former housing and planning minister Brandon Lewis, published a Written Ministerial  Statement (WMS) which declared that housings developments of 10 homes or fewer should not be required to provide affordable housing contributions. This was successfully challenged by West Berkshire Council and Reading Borough Council in the High Court who quashed the Government's decision to publish the statement and relevant updates to National Planning Practice Guidance. Subsequently, this decision was overturned by the Court of Appeal and  as of the 11 May 2016 the WMS was reinstated along with relevant parts of the NPPG.


Whilst not forming part of the development plan, the WMS and NPPG are material planning considerations which should be considered by the relevant decision maker when determining planning applications. However, their status as guidance has led to inconsistent decision making which is particularly relevant to two recent appeal decisions in Brighton; a proposal for 9 flats in Hove (APP/Q1445/W/16/3152366) decided in December 2016 and a proposal for 9 houses in Ovingdean  (APP/Q1445/W/16/3147419) decided in January 2017.


Brighton and Hove City Council adopted their City Plan between the WMS being quashed and subsequently being reinstated. Their adopted affordable housing policy has a requirement to provide 20% affordable housing as an equivalent financial contribution on sites of between 5 and 9 dwellings. In both the above appeal cases, the City Council argued that this policy should apply, whilst the Appellants argued that the WMS and NPPF should take precedence.


In relation to the Hove case, the Inspector considered that the Council had made a strong argument for the need to provide affordable housing, noting that first time buyer houses are 9.6 times average earnings. However, he declared that the WMS and NPPG came into effect after adoption of the City Plan and affirmed the latest expressions of National Policy which should be afforded very considerable weight in the planning balancing exercise.  He considered that had the WMS and NPPG been in place when the City Plan was adopted, it would have been likely that the affordable housing policy would have been amended in order to reflect national guidance. Whilst acknowledging the considerable need for affordable housing, on balance, he decided that an affordable housing contribution was not required.


In relation to the Ovingdean case, which is the more recent of the decisions but only by a month, a different conclusion was reached. It was again acknowledged by the Inspector that there was a significant housing need; the Council had argued that there were over 24,000 households on the housing register with a large number of those in priority need. The Inspector also acknowledged the Council’s evidence relating to the high cost of housing, comparing the average cost of housing with average incomes. The physically constrained nature of the City was also noted, with  50% of all completions within the City comprising developments of 10 units or less. On the basis of this evidence, the Inspector declared that the guidance within the WMS and NPPG was outweighed in the planning balance and a financial contribution should be required. The appeal was subsequently dismissed for this reason (amongst others).


It was hoped that the decision made in the first of these cases provided some clarity and certainty to developers and consultants, but the most recent decision again raises uncertainty. Prior to submitting planning applications on small sites, applicants should be aware of the importance of checking the nuances of each Council’s affordable housing policy in relation to the WMS and NPPG (and when such policies were adopted) along with recent appeal decisions where relevant.

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