Major Planning Law and Policy Changes

Small Schemes Affordable Housing Exemption court case overturned, and Housing & Planning Act 2016 becomes law.

The last 24 hours have seen a number of significant changes in planning law, which will affect everyone involved in residential development.

Small Schemes Affordable Housing Exemption court case overturned

Developers of smaller schemes will be delighted with the outcome of the Court of Appeal decision in the case of West Berkshire vs the Secretary of State, which was handed down yesterday.

The case related to the Government’s planning policy exempting developments of ten dwellings or fewer from the requirement to provide Affordable Housing. The policy was withdrawn suddenly last summer following the Planning Court decision which found the way the policy was introduced was unlawful.

The Court of Appeal has, however, reversed the Planning Court decision, meaning that the exemption from Affordable Housing for small developments was introduced lawfully.

It is important to note that there is a question mark as to whether the Court decision automatically re-introduces the exemption from Affordable Housing for small schemes, as the planning practice guidance was formally withdrawn by the Government last summer.

The Government’s view is, however, that the original Ministerial Statement is still valid, and the Housing and Planning Minister, Brandon Lewis, has issued a statement saying:

“This will now mean that builders developing sites of fewer than 10 homes will no longer have to make an affordable homes contribution.”

The Government’s intention to exempt smaller schemes from Affordable Housing is therefore clear. As before, this means that in most areas, schemes of 10 units or fewer will be exempt, but in Rural Exception Sites schemes of more than 5 houses would be required to provide Affordable Housing or a financial contribution in lieu of on-site Affordable Housing.

This change will have far-reaching implications for both developers and landowners and mean that sites previously discounted on viability grounds could now be brought forward.

In the interim, until the position with respect to the status of the Ministerial Statement is confirmed or the PPG guidance re-inserted, Councils may also put forward arguments that there is no immediate impact to current planning policy. Additionally, given the impact of this policy on Local Authorities’ ability to provide much needed Affordable Housing, it is still quite possible that this decision will be appealed to the Supreme Court.

Housing & Planning Act 2016 Becomes Law

The Housing and Planning bill today received Royal Assent, and became the Housing and Planning Act 2016.

This introduces the controversial principles of Planning Permission in Principle, Brownfield Registers, and the change of tenure of Affordable Housing to include Starter Homes.

Much of the detail of how these provisions will work in practice is still not clear, and will follow in secondary legislation, however the Act being brought into force is a significant milestone for the Government.

This is likely to be good news for developers and give further options for bringing sites forward, but will potentially be a further headache for Councils, especially with regard to the delivery of Affordable Housing.

For more information please contact Rosalind Andrews, Senior Associate Solicitor on 01905 744868 or email

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Rosalind Andrews
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