Why confusion is growing over small sites exemption

Confusion surrounding the interpretation of the government's policy of exempting small sites from affordable housing contributions appears to be deepening with a number of seemingly contradictory appeal decisions by planning inspectors.

A London borough has written to the Planning Inspectorate (PINS) to highlight a series of appeal decisions in which inspectors have apparently come to differing views on whether a local policy seeking developer contributions for affordable housing from small developers can be overridden by a recent written ministerial statement (WMS).

The confusion follows a Court of Appeal decision last May backing the 2014 WMS stipulating that affordable housing or tariff-style obligations should not be levied on small developments. However, the judges' decision also said local planning authorities should be free to develop policies contradicting it, if they can justify why.

The London Borough of Richmond's letter to PINS, dated 13 December, referenced four appeals in which inspectors' decisions had supported it in levying affordable housing on small schemes, and two in which inspectors had ruled the other way, even awarding costs against the council for acting "unreasonably" (see below). Richmond Council's letter said: "All of these appeal decisions have been based upon very similar information submitted to PINS ... Although the decisions relate to different districts within the council's area there are no material differences in the planning considerations that apply to all of them."

The borough has hitherto received no response from PINS. This follows similar issues in Brighton & Hove, where inspectors recently ruled in favour of the council's affordable housing policy in one appeal, and against in another. Reading Council, which originally helped bring the legal case against the government's policy, has suffered two judgments against its policy and four in favour.

There is growing frustration, concern and uncertainty both for the Public and Private Sector. There is a level of uncertainty which is particularly unhelpful for small housebuilders and local planning authorities and there is an urgent need for the Government to clarify matters to achieve consistency in the decision making process. However, action appears unlikely. The Department for Communities and Local Government declined to comment on the issue while PINS apparently did not say it was considering taking action.

In the absence of any further guidance from DCLOG and PINS applicants may need to provide Viability Assessments which demonstrate that the scheme can either not provide the level of AHCs required by specific policies or only part of the sum required. Those involved in such exercises know the additional costs and delays of engaging in such an exercise which would seriously undermine the objective of the WMS to assist in the delivery of more housing via small sites.

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