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Planning law update – December 2020

Welcome to Ward Hadaway's planning law update. The aim of our bite-sized bulletins is to keep you abreast of the 'hot' topics and key legal issues relevant to you.

Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.

Affordable housing can be deliverable via a planning condition

In R (Zins) v East Suffolk Council and another [2020] EWHC 2969 (Admin)  the High Court confirmed that affordable housing can be lawfully secured via planning condition. The permission granted by the Council to the Developer contained a condition requiring 32 affordable housing units. The condition required the details of the unit size, tenure and location to be agreed prior to development commencing. It also included a provision for an alternative payment in lieu of delivery of the affordable housing.

It was claimed that this condition gave too much discretion to the Council in that it did not secure policy compliant affordable housing and that the payment in lieu provision would allow the Developer to set an unrealistic price in order to avoid delivering the units. The Court rejected the claim that the condition yielded control to the Developer. The Developer was required to submit the mechanism for affordable housing delivery off-site to the Council. The Council would therefore be able to set parameters and could, ultimately, refuse to approve such a scheme that did not afford the Council adequate control. There was nothing unlawful in imposing a condition which requires future approval by the Council.

The case offers helpful commentary on the legality of the use of planning conditions to secure  a policy requirement such as affordable housing. However, while lawful, when it comes to valuing stock the lenders of registered providers may prefer the legal certainty offered by a Section 106 Agreement (with built in protections and exemptions in favour of a mortgagee) preferable to an affordable housing condition.

New model to apply to Shared Ownership Dwellings delivered via Section 106 Agreements

The Government has launched a new consultation into a new shared ownership model to be launched in April 2021. A prospective buyer’s initial share will be reduced to a minimum of 10% from 25% and a new staircasing offer will allow additional shares to be purchased in 1% instalments. All new affordable rented homes will also be subject to a “Right to Staircase” using the new model for shared ownership.  While the expectation is that all Shared Ownership homes secured though Section 106 Agreements will conform with the new model, those Developers who have already prepared planning applications may be subject to the old model. In some cases care may need to be taken to ensure the definition of “Shared Ownership Lease” and covenants relating to the use and occupation of “Affordable Rented Units” in a s106 agreement are appropriately future proofed to capture future models.

Another point Developers may need to consider is whether the reduction in the initial share for the homes will have any impact on viability and the type of properties that can be offered as Shared Ownership Units. The consultation closes on 17 December.

Judicial Review of Use Class System and Permitted Development Rights refused by High Court

In R (Rights Community Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin) the challenge against the changes made to the Use Class System and Permitted Development Rights was dismissed by the High Court. The challenge was brought on the basis that the Government should have carried out a Strategic Environmental Assessment in respect of the changes, had failed to comply with its public sector equality duty and had failed to consult on the proposals in the manner it had indicated.

The Court found the public sector equality and failure to consult claims were rejected, but the claim regarding the Strategic Environmental Assessment were considered in more detail. It was held that the changes did not constitute “a plan or programme setting the framework for future development consents.” In respect of the reform of Permitted Development Rights, they “delimit the scope of powers” a planning authority may exercise. In addition they found that these changes did not  repeal or modify pre-existing plans such as the development plan which would be subject to environmental assessment, despite the potential for some polices to be rendered redundant.

The Claimant has sought permission to appeal on the Strategic Environmental Assessment Ground and we await to see if permission is granted.

Planning reforms subject to delays as Government faces opposition from backbenchers

The Government, in the face of mounting opposition from its own backbenchers, is to revise its reform of the Standard Methodology for calculating housing need. It was feared that the amendment to the Standard Methodology would lead to less houses being built in the North of England compared to the South. We await details of the revised form that the Standard Methodology will take, but it is also looking increasingly likely that other proposals in the Government’s White Paper will be revised or stalled.

If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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