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In a landmark ruling, the High Court has quashed planning guidance that exempted certain types of developments from their Section 106 obligations to contribute to affordable housing.
The policies enabling such exemptions were introduced by Housing Minister Brandon Lewis in November 2014 and let developers convert empty buildings into housing without making the usual Section 106 contributions for affordable homes as well as introducing a complete exemption from Section 106 contributions for any schemes of 10 homes or fewer. The justification was that the government wished to make small scale developments more financially viable and boost house-building. The effects however have largely benefitted property developers who have saved millions in contributions to affordable housing under the ‘vacant building’ credit policy and have made massive profit on small-scale housing developments.
The case, brought by West Berkshire District Council and Reading Borough Council against the Department for Communities and Local Government, sought to challenge the new policies claiming that the result would be a reduction in the amount of affordable homes they could build. In addition it would result in a loss of 21% of affordable housing across the country, with a particular impact in regional areas where tight green belt restrictions mean that much new housing is made up of small-scale developments on brownfield sites. Mr Justice Holgate ruled that both policies had been implemented without proper evidence, against the advice of officials and without a fair consultation process. Deeming both policies as “incompatible” with the existing statutory planning framework, Justice Holgate ruled that the exemptions which are promoted in the Written Ministerial Statement should not be treated as a material consideration in development management and development plan procedures and decisions.
The landmark ruling is welcomed by many in the housing sector and should enable the generation of more affordable homes. It marks a victory for local authorities who produce local plans through a proper consultation process, driven by housing need, against a tide of changeable, and potentially misguided government policy.
Full citation: West Berkshire District Council and another v Department for Communities and Local Government  EWHC 2222 (Admin)
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