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Landmark ruling could pave way for hundreds of new housing developments

12/05/2016

* There us an update to this story below. 

The Court of Appeal has overturned a ruling which had quashed the Government's policy on affordable housing, potentially paving the way for hundreds of new applications for developments across the UK. 

Planning Solicitor-Advocate Niall Blackie, of the Law Society's Specialist Planning Panel and Senior Partner with FBC Manby Bowdler said: “This decision will have far-reaching implications for developers and councils across the UK.”

Yesterday's judgement backs a Government policy which said small-scale developments of 10 houses or fewer did not need to include affordable homes - a policy which many local authorities said was directly opposed to their own local development plans. 

The original appeal was brought by West Berkshire and Reading councils, which claimed the Government's affordable housing policy went against planning law which they said did not allow the Minister to make a policy which overrode local authorities’ own local development plans, which they use to determine planning applications. 

In July 2015, the High Court quashed the national policy but today the Court of Appeal has ruled that the Government was entitled to introduce the policy and that local authorities had had proper opportunity to comment – a matter they had disputed.

The ruling last year specifically referenced Shropshire Council's response to consultation on the affordable housing policy before it was introduced, which said that 80% of the annual housing delivery in the county took place on sites of five or less, so the number of affordable homes being built in the region would have been lower under the government’s affordable housing policy. 

Mr Blackie said: “There is a possibility of a further appeal by the councils to the Supreme Court. Also, the Minister’s original policy was withdrawn after the High Court order quashing it, so it is for the Minister to decide whether to publish it again, and of course when to do so. For the moment, however, the policy does not exist in legal terms.

“If he did reissue the policy, there would be some significant ramifications. Shropshire was one of the local authorities which had been opposed to this part of the government’s affordable housing policy. 

“Many councils, such as Shropshire, have now adopted development plan policies which are in conflict with the original policy. Indeed Shropshire’s delivery of affordable housing is underpinned by the expectation of contributions from all sites, not just those of 10 houses or more, and much of its housing will be on these smaller sites. 

“Arguably their housing policies in the plan would then become out of date, and liable to be set to one side in planning decisions and appeals. It would be for the council to show why its development policies should prevail over any newly adopted national policy. There are many sites where developers have signed up to these contributions in planning agreements or undertakings, and may now wish to seek permissions which do not have those payments!

“My team of planning lawyers have awaited this decision with keen interest because it has affected dozens of cases which we have been handling over the last year; and we expect to advise many developers, land owners and planning consultants about the ramifications of the decision for their specific current and future plans over the coming weeks.”

Follow this link to find out more about the planning applications and appeals services offered by FBC Manby Bowdler.

“The Government has confirmed now that its original national policy remains its policy even though it formally withdrew the Guidance which had explained the policy. I expect the Guidance will now be reissued. 

“But in light of that I will now be arguing that significant weight should be given to the newly repeated national policy, immediately, even where development plans have been adopted that are contrary to it, so that planning permission can be granted without affordable housing contributions on sites of 10 houses or less.

“I will also be arguing that Councils which have adopted development plans that are contrary to the national policy should accept that their plans are out of date now, and should be immediately reviewed.”

Niall Blackie, Senior Partner

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